Washington v. William Morris Endeavor Ent. et al. (11-3576) -- Appellant's Expedited Motion for Review To Recall Mandate, Vacate Improvident Order and Articulate Reasoning in the Form of a Judicial Opinion, Pending the Filing and Disposition of a Petition For Certiorari. Exhibits Included. [May 3, 2012]

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500
MOTION INFORMATION STATEMENT
Docket Number(s): ________
Molion tor: Motion to Recall Mandate and Vacate Order Washington v. William Morris Endeavor
Set forth below precise, complete statement of relief sought:
Askine the Court to recall mandate and either: (1) vacate
its imorovident order and articulate en bane's decision or
(2) articulate en bane's decision and stav the mandate.
oendine the filine of oetition for a writ of certiorari.
MOVINGPARTY:Mr. Washineton
0 Plaintiff 0 Defendant
0 Appellant/Petitioner 0 Appellee/Respondent
MOVING ATTORNEY: Mr. Marcus Isaiah Washington (ProSe Litigant)
Entertainment, LLC et al.
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OPPOSING PARTY: William
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OPPOSING ATTORNEY: Mr. Michael Zwe'i'g' & Christian Carbone
[name of attomey, with firm, address, phone number and e-mail]
54 Boerum St.. Aot. 6M Loeb & Loeb. LLP

______________________________ __
Court-Judge/ Agency appealed from: Judee P. Kevin Castel I I Southern District of New York
Please check appropriate boxes:
Has movant notified opposing counsel (required by Local Rule 27.1 ):
[]Yes 8 No (explain): Not reoresented bv counsel.
Opposing counsel's position on motion:
Dl Unopposed [JOpposed E]Don't Know
Does opposing counsel intend to file a response:
[]Yes [JNo E.loon'tKnow
FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND
INJUNCTIONS PENDING APPEAL:
Has request for relief been made below? EJ Yes CJ No
Has this relief been previously sought in this Court? E] Yes IJ No
Requested return date and explanation of emergency: Due to the
"exceotional imoortance" of this issue. 2nd Circuit should
articulate reasonine in form ofiudicial ooinion bv 5118112.
Is oral argument on motion requested? IJYes EJNo (requests for oral argument will not necessarily be granted)
Has argument date of appeal been set? C]Yes I2J No Ifyes,enterdate: _____________________ _
"' Mav 3. 2012
Has service been effected? ElJYes [J No [Attach proof of service]
ORDER
IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, Clerk of Court
Date:
----------------------------------- By: --------------------------------------
Form T-1080
Case: 11-3576 Document: 51 Page: 1 05/03/2012 602374 80
No. 11-3576 CV
FOR THE SECOND CIRCUIT
MARCUS ISAIAH WASHINGTON,
Plaintiff-Appellant
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WILLIAM MORRIS ENDEAVOR ENTERTAINMENT, LLC; formerly the WILLIAM
MORRIS AGENCY; JEFF MEADE and SARAH WINIARSKI,
Defendants-Appellees
Appeal from the U.S. District Court
for the Southern District ofNew York
No. 10 Civ. 964 7 (PKC)(JCF)
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EXPEDITED MOTION FOR REVIEW TO RECALL MANDATE, VACATE
IMPROVIDENT ORDER AND ARTICULATE REASONING IN THE FORM OF A
JUDICIAL OPINION, PENDING THE FILING AND DISPOSITION OF A PETITION
FOR CERTIORARI
Mr. Marcus Isaiah Washington
54 Boerum St. Apt. 6M
Brooklyn, NY 11206
(646) 504-6497
humanrights.areamust@gmail.com
Pro Se Litigant
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF AUTHORITIES
STATEMENT OF FACTS
ARGUMENTS
I. MANDATE SHOULD BE RECALLED AND ORDER VACATED TO
PREVENT MANIFEST INJUSTICE.
A. THE POWER OF THE COURT OF APPEALS TO RECALL A
MANDATE IS "UNQUESITONED."
B. THE APPEAL WAS NOT "MOOT."
1. "Personal Stake Mootness" Does Not Exist Because As A
Matter OfLaw, Judge Castel's Erroneous Order Compelling
This Case Into Arbitration Has Been Upheld Without Reason
And the Second Circuit Failed To Address, Amongst Many
Things, The Issue of Disqualification.
2. Based On The "Strong Public Interest" Arguments Raised
Throughout The Appeal, "Issue Mootness" Does Not Exist
Either.
C. A JUDICIAL OPINION SHOULD HAVE BEEN ARTICULATED
WHETHER APPEAL WAS GRANTED OR DENIED. UNETHICAL
ACTIONS OF COURT HAVE VIOLATED NUMEROUS CANONS
OF THE JUDICIAL CODE OF CONDUCT.
D. HARMFUL ACTIONS REFLECT INSTITUTIONALIZED RACISM
WITHIN AMERICA'S JUDICIAL SYSTEM AND A LARGER
CONSERVATIVE CONSPIRACY TO EVISCERATE MANY OF THE
GAINS MADE DURING THE CIVIL RIGHTS MOVEMENT.
CONCLUSION
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Page
1
11
1
3
3
3
3
3
4
11
12
20
Ricci v. DeS tcjano, 129 S. Ct. 2658 (2009) ..................................... 16-17
Roc v. Wade, 410 U.S. 113 (1973) .................................................. 10
Ron1e Entertainment, Inc. v. William Morris Agenry, Inc., 2005 WL 22833
(S.D.N.Y. Jan. 5, 2005), aff'd, 167 Fed. Appx. 227 (2d Cir. Dec. 30,
2005) .. 0 .. 0. 0 .. 0. 0 0 0 .... 0 0 0. 0 0 .... 0 0 0 0 .. 0 0 .... 0 0 ... 0 0 0 0 0 0. 0 0 0 0 .. 0 0 ... 0 0 0 0 .. 0. 7, 12, 15
St. Piem v. United States, 319 U.S. 41, 42 (1943) ................................. .4
Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86, 89 (2d Cir. 1996) ............. 3
State v. Casry (1923) 108 Or. 418, 217 Pac. 632 .................................. 11
State Farm Mut. Ins. Co. v. Superior Court, Pima County, 15 Ariz. App. 3, 485
P.2d 593 (Div. 2 1971) ............................................................ 11
Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515
(1911). 0 0 ... 0 0 0 .. 0 0 .... 0 0 0 0. 0 ...... 0 0 0. 0 0 0 0 0 0 0 0 0 ... 0 0 0 0 0 0 0. 0 .. 0 0 0 .. 0 0 0 0 0 0 0 0 ... 0 0 0 0 0. 0.10
United States v. Bqyless, 201 F.3d 116, 126 (2d Cir. 2000) ........................ 15
United States v. Int'lBhd. f!!Teamsters, 955 F.2d 171,174 (2d Cir. 1992) ........ 15
United States v. Miller, 263 F.3d 1, 4 n. 2 (2d Cir.2001) ........................... 3
United States v. 509 F.3d 837 (7th Cir. 2007) ........................ 3
United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953) ........................ 9
Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) ........................... 16
Zipftl v. Halliburton Co., 861 F.2d 565, 567. (9th Cir. 1988) ...................... 3
CONSTITUTION
U.S. Canst., Amendment XIV ..................................................... 12
-ii-
Ricci v. DeStefano, 129 S. Ct. 2658 (2009) ..................................... 16-17
Roe v. Wade, 410 U.S. 113 (1973) .................................................. 10
Ron'e Entertainment, Inc. v. William Morris Agenry, Inc., 2005 'WL 22833
(S.D.N.Y. Jan. 5, 2005), aft'd, 167 Fed. Appx. 227 (2d Cir. Dec. 30,
2005) ........................................................................ 7, 12, 15
St. Pierre v. United States, 319 U.S. 41, 42 (1943) .................................. 4
Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86, 89 (2d Cir. 1996) ............. 3
State v. Carry (1923) 108 Or. 418,217 Pac. 632 .................................. 11
State Farm Mut. Ins. Co. v. Superior Court, Pima Coun!J, 15 Ariz. App. 3, 485
P.2d 593 (Div. 2 1971) ............................................................ 11
Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515
(1911) .................................................. ..................... 10
United States v. Bqyless, 201 F.3d 116, 126 (2d Cir. 2000) ........................ 15
United States v. Int'l Bhd. rifTeamsters, 955 F.2d 171, 174 (2d Cir. 1992) ........ 15
United States v. MiUer, 263 F.3d 1, 4 n. 2 (2d Cir.2001) ........................... 3
United States v. 509 F.3d 837 (7th Cir. 2007) ........................ 3
United States v. W.T. Grant Co., 345 U.S. 629,632 (1953) ........................ 9
Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) ........................... 16
Zipftl v. Halliburton Co., 861 F.2d 565, 567. (9th Cir. 1988) ...................... 3
CONSTITUTION
U.S. Const., Amendment XIV ..................................................... 12
-iii-
STATUTES
Gen. Bus. L 340 et seq ........................................................ .... 9
15 U.S.C. 1 et seq .................................................................. 9
28 u.s.c. 455 ....................................................................... 2
28 u.s.c. 1291. ................................................................... 2
28 u.s.c. 1292 (b) ................................................................... 2
28 u.s.c. 1651. ...................................................................... 2
28 u.s.c. 2106 ...................................................................... 2
42 U.S.C. 1891 et seq .............................................................. . 1
42 U.S.C. 2000e et seq ........................................................... . 1
RULES
Fed. R. App. P. 41, (d)(2) ........................................................ 1, 20
Fed. R. Civ .. P. 56( c) ................................................................. 9
Fed. R. Civ. P. 60 ..................................................................... 8
BOOKS AND JOURNAL ARTICLES
Alifya V. Curtin, Gerald Lebovits and Lisa Solomon. Ethical Judicial
Opinion Writing. The Georgetown Journal of Legal Ethics. Vol. 21. p. 244.
(2008) ............................................................................... 11
Allan D. Cooper. From Slavery to Genocide: The Fallacy of Debt in
Reparations Discourse. Journal of Black Studies. 2012 ......................... 20
Bernie D. Jones. "Critical Race Theory: New Strategies for Civil Rights in
the New Millennium?" Harvard Blackletter Law Journal. Vol. 18, p. 2-3.
(2002) ............................................................................... 13
Carter G. Woodson, The Mis-Education of the Negro (1933) ............... 20
-iv-
Charles R Lawrence III. Id, Ego and Equal Protection: Reckoning With
Unconscious Racism. 39 Stan. L. Rev. 317 (1987) .............................. 9
Cheikh Anta Diop. The African Origin Of Civilization: Myth or Realty
(1957) ................................................................................ 20
Devah Pager and Bruce Western. "Race at Work: Realities of Race and
Criminal Record in the NYC Job Market." Department of Sociology-
Princeton University. (December 9, 2005) ........................................ 7
Eric Williams, Capitalism and Slavery (1944) .................................... 20
Geraldine Szott Moohr. Arbitration and the Goals of Employment
Discrimination Law. 56 Wash. & Lee L. Rev. 395 (1999) ....................... 18
Ira Katznelson, When Affirmative Action Was White (2005) ................. 20
J.A. Rogers, Nature Knows No Color-Line (1952) ............................. 20
J.A. Rogers, Sex & Race Vol. 1 (1967) ........................................... 20
Jack Gratus, The Great White Lie: Slavery, Emancipation and Changing
Racial Attitudes (1973) ............................................................ 20
Joe R Feagin. Documenting the Costs of Slavery, Legal Segregation and
Contemporary Racism: Why Reparations Are in Order For African
Americans. Harvard BlackLetter Law Journal. Vol. 20, 2004 .................. 20
JoeL. Selig. The Reagan Justice Department and Civil Rights: What Went
Wrong? 1985 U. Ill. L. Rev. 785 (1985) .......................................... 13
Jules Lobel and Barbara Wolvovitz. The Enforcement of Civil Rights
Statutes: The Reagan Administration's Record. 9 Black L. J. 252 (1986) ..... 13
Kevin Stainback and Donald Tomaskovic-Devey. Discrimination &
Desegregation: Equal Opportunity Progress in U.S. Private Sector
Workplaces Since the Civil Rights Act. The ANNALS of the American
Academy of Political and Social Science. (2007) ................................. 6
Laura Giuliano, David I. Levine and Jonathan Leonard. "Manager Race and
the Race of New Hires." Quly 2008) .............................................. 7
Lisa Michalle Ellman, David Schkade and Cass R Sustein. ''Ideological
Voting on Federal Courts of Appeals: A Preliminary Investigation,"
University of Chicago. September 2003 .......................................... 14
-v-
Malcolm X, The Autobiography of Malcolm X (1964) ........................ 20
Marianne Bertrand and Sendhil Mullainathan. ".fue Emily and Greg More
Employable than Lakisha and Jamal: A Field Experiment on Labor and
Market Discrimination." University of Chicago Graduate School of Business.
Gune 20, 2004) ...................................................................... 7
Marc Bendick, Jr., Ph.D. and Mary Lou Egan, Ph.D, "Research Perspectives
on Race and Employment in the Advertising Industry," Bendick and Egan
Economic Consultants, Inc. (2009) .............................................. 16
Michael]. Klarman, Unfinished Business: Racial Equity in American History
(2007) ................................................................................ 20
Tim Wise. Colorblind: The Rise of Post-Racial Politics and the Retreat From
Racial Equity. (2010) ............................................................ 9, 17
Tom Burrell, Brainwashed: Challenging the Myths of Black Inferiority
(2010) ............................................................................... 20
William Darity, Jr. Forty Acres and a Mule in the 21st Century. Social
Science Quarterly. Volume 89, Number 3, September 2008 ................... 20
Will Evans. "Money Trails To The Federal Bench." Center for Investigative
Reporting. October 31, 2006 ...................................................... 14
Y osef A.A. ben-J ochannan, African Origins of the Major 'West em Religions'
(1970) ............................................................................. .. 20
ADDITIONAL SOURCES
"Does Afftrmative Action Punish Whites?" Associated Press. April 28,
2009 ................................................................................. 17
"Fewer Call Racism A Major Problem Though Discrimination Remains."
ABC News. January 19, 2009 ...................................................... 6
"Racial Disparities Persist In Higher-Paying Jobs." Associated Press. April
27, 2009 ............................................................................. 16
A. Leon Higginbotham. "The Case of the Missing Black Judges." New York
Times. July 29, 1992 ............................................................... 13
-vi-
Ben Jacobs and Harry Siegel. "African-Americans Nowhere to Be Found in
Romney's Orbit." The Daily Beast. April 11, 2012 ............................. 18
Charlie Savage. "Appeals Courts Pushed By Right By Bush Choices." New
York Times. October 28,2008 ................................................... 13
Dan Bilefsky. "For New Life, Blacks in City Head South." New York Times.
June 21, 2011. ....................................................................... 6
David Lauter. "Civil Rights Bill Vetoed By Bush." Los Angeles Times.
October 23, 1990 .................................................................. 16
Elisabeth Bumiller. "Bush Vows to Seek Conservative Judges." New Y ark
Times. March 29, 2002 ............................................................ 14
Michael Luo. "In Job Hunt, College Degree Can't Close Racial Gap."
November 30, 2009 ................................................................. 7
Neil A. Lewis. "The 1992 Campaign; Selection of Conservative Judges
Insures a President's Legacy." New York Times. July 1, 1992 ................ 13
Timothy Williams. "As Public Sector Sheds Jobs, Blacks Are Hit Hardest."
New York Times. November 28, 2011 ........................................... 6
-vii-
"They had for more than a century before been regarded as beings of an inferior order, and
altogether unfit to associate with the white race, either in social or political relations; and so far
unfit that they had no rights which the white man was bound to respect ... "
1
Pursuant to Fed. R. App. 4I, prose Plaintiff-Appellant Marcus Isaiah Washington respectfully submits
this motion to ask this Court to recall its mandate and either: (1) vacate its improvident order and
articulate en bane's opinion to prevent manifest injustice or (2) articulate en bane's opinion and stay the
mandate for 90 days, pending the filing and disposition of a petition for a writ of certiorari with the
Supreme Court.
STATEMENT OF FACTS
I. On September 28, 20I2, Mr. Washington submitted an Emergency Motion to Expedite Appeal and
Request for the Disqualification of Hon. P. Kevin Castel and Hon. James C. Francis (hereinafter
"Emergency Motion"), to request an expedited decision once both parties submitted their Briefs. The
Emergency Motion (20 page maximum) summarized the arguments that were to be raised in his Brief (30
page maximum) and demonstrated why the harmfully erroneous decision of Judge Castel- compelling a
case challenging the 114 year old, institutionally racist employment practices, policies and/or procedures
of Appellee William Morris Endeavor Entertainment, LLC (hereinafter "William Morris"), a violation
Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. 1981 ("Section 1981"), Title VII of the Civil
Rights Act of 1964, as codified, 42 U.S.C. 2000e et seq. ("Title VII"), the New York State Human
Rights Law, New York Executive Law 296 et seq. (the "NYSHRL"), and the New York City Human
Rights Law, New York Administrative Code 8-107 et seq. (the "NYCHRL"), into arbitration under the
Federal Arbitration Act, 9 U.S.C. I et seq. ("FAA")- should have been reversed.
First, Mr. Washington demonstrated that Judge Castel's Order was incorrect as a matter of law.
Secondly, he demonstrated that there was a "strong public interest" that this case remain in the court due
to (I) the ineffectiveness of the Civil Rights Act of 1964's ability to combat institutional racism in the
workplace and to (2) address the direct role William Morris' (and Hollywood) "cabal-like practices" play
1
From the opinion of Chief Justice Tanley in Dred Scott v. Sanford, 60 U.S. 393, 407 (1856), denying Mr.
Scott's application to be considered free because ofhis move from a slave state to a free state.
-1-
in maintaining racism throughout society. He concluded by presenting evidence supporting his belief that
an appearance and/or actual bias, prejudice and impropriety existed with both judges assigned to his case
and that they should be disqualified pursuant to 28 U.S.C. 455 and 28 U.S.C. 2106. The Appellees
never rebut the arguments that Judge Castel applied the wrong standard of law and instead argue that the
Court did not have jurisdiction to hear the appeal because Judge Castel issued an interlocutory order and
the appeal was "moot." Mr. Washington responded by stating that the appeal was not "moot" by
demonstrating an "extraordinary showing of 'good cause"' pursuant to section 1292(b), as codified 28
U.S.C. 1292(b),justifying an expedited appeal. He also argues that Judge Castel issued the interlocutory
order, after misapplying the law, to make it difficult for him to appeal and thus "harmfully delay the case
from being litigated."
On December 13, 2011, Judges Lynch, Hall and Chin denied Mr. Washington's appeal in a
premature, one-paragraph decision stating that an order staying a case, pending arbitration, is a non-final
order which is not immediately appealable pursuant to 9 U.S.C. 16(b)(1) and that the Court "lacks
jurisdiction over this appeal because a final order has not been issued by the district court as contemplated
by 28 U.S.C. 1291." The panel "further ordered that the Appellant's motion [was] denied as moot."
2. On December 27, 2011, Mr. Washington filed a Petition for Rehearing, Petition for Rehearing en bane
and/or Petition for a Writ of Mandamus (hereinafter "Motion for Reconsideration") demonstrating that the
Court erred because based the arguments raised in his Emergency Motion, he met the multi-factored
requirements under section 1292(b ), the collateral order doctrine and the All Writs Act, as codified as 28
U.S.C. 1651 to allow for an immediate appellate review.
3. On February 3, 2012, in a two-sentence order, the "panel [determining] the appeal ... and the active
members of the Court [considering] the request for reconsideration en bane" denied the motion without
any explanation. For the second time, no judicial opinion was provided.
4. On February 14, 2012, the erroneous one-paragraph decision from December 13 2011 was issued as a
mandate to the Southern District of New York, continuing to state that the Court "lacks jurisdiction over
this appeal."
-2-
ARGUMENTS
I. MANDATE SHOULD BE RECALLED AND THE ORDER VACATED TO PREVENT
MANIFEST INJUSTICE.
A. THE POWER OF THE COURT OF APPEALS TO RECALL A MANDATE IS
"UNQUESTIONED."
The power to recall the Court's mandate is not created by statute, but "exists as part of the court's
power to protect the integrity of its own processes." Zipfel v. Halliburton Co., 861 F.2d 565, 567. (9th Cir.
1988). The Second Circuit has stated, "Our power to recall a mandate is unquestioned[ ] ... However, this
power is to be 'exercised sparingly,' ... and reserved for 'exceptional circumstances."' Sargent v.
Columbia Forest Prods., Inc., 75 F.3d 86, 89 (2d Cir. 1996); see also Calderon v. Thompson, 523 U.S.
538, 549-550 (1998) (recognizing that courts of appeals "have the inherent power to recall their mandates,
subject to review for abuse of discretion."). In "exceptional circumstances" such as this, when inaction
would lead to manifest injustice, the Second Circuit should use its "unquestioned" power to recall its
mandate and vacate its improvident order. See United States v. Reyes-Sanchez, 509 F.3d 837 (7th Cir.
2007).
B. THE APPEAL WAS NOT "MOOT."
1. "Personal Stake" Mootness Does Not Exist Because As A Matter Of Law, Judge Castel's Erroneous
Order Compelling This Case Into Arbitration Has Been Upheld Without Reason And the Second Circuit
Failed To Address The Issue ofDisqualification.
"[A] federal court may not ... decide a case on the merits before resolving whether the court has
Article III jurisdiction." United States v. Miller, 263 F.3d 1, 4 n. 2 (2d Cir.2001). "Mootness is a doctrinal
restriction stemming from the Article ill requirement that federal courts decide only live cases or
controversies." In re Zarnel, 619 F.3d 156, 162 (2d Cir.2010). Under the doctrine ofmootness, a court no
longer has subject matter jurisdiction when "the issues presented are no longer live or the parties lack a
legally cognizable interest in the outcome." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct.
1379, 1383, 59 L.Ed.2d 642 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944,
1951, 23 L.Ed.2d 491 (1969) (internal quotation marks omitted)). Thus, for a federal court to have subject
-3-
matter jurisdiction over a case, "it is not enough that a dispute was very much alive when suit was filed ....
The parties must continue to have a personal stake in the outcome of the lawsuit." Knaust v. City of
Kingston, 157 F.3d 86, 88 (2d Cir.1998) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477-
78, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)) (internal citation and quotations omitted), cert. denied, 526
U.S. 1131, 119 S.Ct. 1805, 143 L.Ed.2d 1009 (1999).
Since Judge Castel's harmfully erroneous decision compelling this landmark civil & human
rights case into arbitration has been erroneously upheld by the Second Circuit without reason, my
"personal stake" in the outcome of this issue is "live" and a reversal based on the merits would clearly
"affect the rights of the litigants." Liner v. Jafco. Inc., 375 U.S. 301, 306 (1964) (citing St. Pierre v.
United States, 319 U.S. 41, 42 (1943)). Additionally, personal stake mootness does not exist because the
Second Circuit failed to acknowledge or resolve any of my prayers for relief, including the
disqualification of botl;l corrupt judges assigned to this case. (Em. Motion, 18-20; Reply Em. Motion, 9-
10.)
2. Based On The "Strong Public Interest" Arguments Raised Throughout The Appeal, "Issue" Mootness
Does Not Exist Either.
The "strong public interests" arguments raised before the Second Circuit present powerful
prudential arguments in favor of hearing the appeal, even if personal stake mootness existed. This section
expounds upon the "strong public interest" arguments articulated throughout my Emergency Motion and
shows that as a matter oflaw, "issue" mootness does not exist either. (Em. Motion, 12-16.)
The narrowed unconscionability argument raised in the Southern District of New York required
Judge Castel to apply antidiscrimination law within the framework of the FAA to determine
unconscionability of the arbitration agreements "discrimination" and "retaliation" provisions. (Em.
Motion, 5-12.) However, my "strong public interest" arguments required the Second Circuit to do the
reverse -- analyzing the FAA within the framework of antidiscrimination law to determine if arbitration
was an appropriate forum to achieve the long-term policy objectives of the Civil Rights Act of 1964. The
purpose of Title VII is twofold: the statute seeks to (1) remedy individual injuries of discrimination, and
-4-
(2) achieve the public purpose of ending workplace discrimination. See Albemarle Paper Co. v. Moody,
422 U.S. 405, 417 (1975) (stating primary purpose of Title VII is "prophylactic"). It is well established
that discrimination claims asserted under both Title VII and Section 1981 are arbitrable. See e.g., 14 Penn
Plaza LLC v. Pyett. 129 S. Ct. 1456, 1470 n.9 (2009) ("nothing in the text of Title VII ... precludes
contractual arbitration"); Arciniaga v. General Motors Corp .. 460 F.3d 231, 234 (2d Cir. 2006) (finding
discrimination claim asserted under 42 U.S.C. 1981 arbitrable). What separates this case from others is
that very few antidiscrimination cases throughout American history have involved a company that has
remained "silent" to the historical, statistical and other irrefutable forms of evidence demonstrating
intentional discrimination towards African Americans and other persons of color spanning 114 years.
The Civil Rights Act of 1964 is social legislation -- symbolizing the struggle of people of African
descent to be treated as equals and to have equal employment opportunity in America. Since I am not
able to afford the costs of expert testimony as a pro se litigant with approved in forma pauperis status, it

would have been impossible for me to discuss a complex, social issue and conclude that the Civil Rights
Act of 1964 was "ineffective" without incorporating sociological jurisprudence. ~ 68. I received a
Bachelor in Media Management and Psychology from the-University of Miami, so I understand the value
of social science research and the role powerful communicative mediums play in influencing and shaping
the collective consciousness of society. Even if my appeal appeared "academic," every source relates to
the arguments presented in this case and buttresses the original legal argument that the "discrimination"
and "retaliation" provision in the Appellees' arbitration agreement were unconscionable, tainted with
illegality and malum in se. (Reply Em. Motion, 10.)
I ultimately presented this information because I am aware of the differences in views between
whites and blacks on matters concerning race and racism are drastically different. In an early 2009 ABC
News/Washington Post poll, 83 percent of whites insisted that African Americans have just as good of a
-5-
chance as whites to get a job for which they are qualified for.
2
Reality, however, paints a bleaker picture
as the national unemployment figures for blacks have historically remained double that of whites and
reached a 27 year peak at 16.7 percent in August 2011. (Em. Motion, 13.) In the course of a few short
years, much of the African American middle class has been wiped out. As our economy is on the verge
of collapsing, this could be the nail in our coffm. Job losses have "blunted gains made in employment
and wealth during the previous decade and undermined the stability of neighborhoods where there are
now fewer black professionals who own homes or who get up every morning to go to work. "
3
If entire
industries, particularly in New York City, employ similar discriminatory practices, policies and/or
procedures that have maintained racial makeups similar to William Morris, then this is a significant
contributor to our Depression-level unemployment rate.
The conclusions found in the longitudinal study Discrimination and Desegregation: Equal
Opportunity Progress in U.S. Private Sector Workplaces since the Civil Rights Act "mirrors" the
workplace trends of William Morris over the five decades. This study was one of the "first to produce
long-time trends on workplace equal employment outcomes" by comparing the fates of black, white,
Hispanic and Asian men and women over a period of 36 years (from 1966 through 2002). The researchers
concluded:
" ... from documenting these basic trends ... while almost all workplaces have incorporated women and
raciaVethnic minorities as employees, status segregation within workplaces remains very high, white
males continue to have advantaged access to the best quality jobs, most racial progress in EEO stalled
after 1980, and white women seem to have benefited the most from the struggles for E E O . ' > < ~
2
"Fewer Call Racism A Major Problem Though Discrimination Remains." January 19, 2009.
http://abcnews.go.com/images/PollingUnit/1085a2RaceRelations.pdf
3
Timothy Williams. "As Public Sector Sheds Jobs, Blacks Are Hit Hardest." New York Times. November 28,
2011. http:/ /www.nytimes.com/20 11111129/us/as-public-sector-sheds-jobs-black-americans-are-hit-hard.html;
See also Dan Bilefsky. "For New Life, Blacks in City Head South." New York Times. June 21, 2011.
http:/ /www.nytimes.com/20 11106/22/nyregion/many-black -new-yorkers-are-moving-to-the-
south.html?pagewanted=all. (discussing the effect unemployment has had on African Americans' ability to
continue living in New York City - further cementing housing segregation and inequality.)
4
Kevin Stainback and Donald Tomaskovic-Devey. Discrimination & Desegregation: Equal Opportunity
Progress in U.S. Private Sector Workplaces Since the Civil Rights Act. The ANNALS of the American
Academy ofPolitical and Social Science. p. 63 (2007)
-6-
The pyramid chart detailing the racial makeup of the company on the day I started, as well as the day I
left, reflects the "effects" of institutional and insidious discrimination. ("Exhibit A") It is true that white
women have benefited the most from the struggles for EEO, although the law was originally intended for
African American men and women. (Pl. Opp. Motion, 4.) William Morris has made considerable progress
in transforming its "old boy's network" into a more female friendly cabal. In 1975, the company hired its
first female Agent Trainee. ("Exhibit B") In September 2008, 19 out of the 52 Agents, or 37 percent, were
women. Progress for African Americans and other minorities, however, has been nonexistent. Although
the first African American Agent Trainee was hired in 1961, less than 5 African Americans have been
promoted to Agent in New York City since 1975. 50-72; Pl. Opp. Motion, 5-8.) Racial homogeneity
and occupational segregation are commonplace throughout many industries in the United States,
particularly in Hollywood. As being argued in this case - this is not due to chance and the resulting
disparate impact against African Americans is due to continuing discrimination, whether conscious or
unconscious.
5

Only a Court engaged in bias, impropriety, and collusion would uphold an erroneous decision to
prevent a jury from making a verdict that would deter similar violators from engaging in these unlawful,
unethical and immoral acts. While preparing this Motion, I uncovered evidence from another racial
discrimination case involving William Morris which supports tllis fact. In 1998, a group of African
American concert promoters sued William Morris and a group of other talent agencies and promoters in
Rowe Entertainment, Inc. v. William Morris Agency, Inc., 2005 WL 22833 (S.D.N.Y. Jan. 5, 2005), affd,
167 Fed. Appx. 227 (2d Cir. Dec. 30, 2005). The promoters proved that they were never allowed the
5
Michael Luo. "In Job Hunt, College Degree Can't Close Racial Gap." November 30,2009.
http://www.nytimes.com/2009/12/01/us/01race.html.; See also Devah Pager and Bruce Western. "Race at
Work: Realities ofRace and Criminal Record in the NYC Job Market." Department of Sociology-
Princeton University. (December 9, 2005) (black job seekers fair no better than white men released from
prison.); Marianne Bertrand and Sendhil Mullainathan. "Are Emily and Greg More Employable than
Lakisha and Jamal: A Field Experiment on Labor and Market Discrimination." University of Chicago
Graduate School ofBusiness. (June 20, 2004) (conducted experiment in which they concluded that
applicants with African sounding names received fewer callbacks for each resume sent out and faced
differential treatment when searching for jobs.); Laura Giuliano, David I. Levine and Jonathan Leonard.
"Manager Race and the Race of New Hires." (July 2008) (examined whether the race or ethnicity of the
hiring manager affects the racial composition of new hires.)
-7-
opportunity to book white acts and were only able to book African American acts until they achieved
mainstream success, amongst numerous other examples to support their antidiscrimination and antitrust
claims. While researching the record of this case, I came across expert testimony by Joe R. Feagin, Ph.D.,
titled Institutional Racism in the Entertainment Industry: An Opinion Regarding Racial Discrimination in
the Promotion of Concert Performances in the United States. ("Exhibit C") Although Judge Patterson
excluded this testimony from the record, it mirrors many of the arguments raised since I filed my
Complaint and discusses the deleterious effects William Morris' lack of diversity inside the workplace
has had on black concert promoters.
On March 2, 2012, I discovered that Leonard Rowe filed a Motion to Vacate pursuant to Fed. R.
Civ. Pro. 60, requesting that his case be reopened after parties involved in his case, including his own
attorney, Magistrate Judge Francis, Michael Zweig and Loeb & Loeb, LLP conspired to destroy evidence
and prevent his case from being heard in front of a jury. He stated that emails containing the word
"nigger" and "coon" were found more than 349 times by executives at both the William Morris Agencl
and Creative Artists Agency (CAA) during discovery, but the physical evidence was withheld and
ultimately, not mentioned in the judge's Order. This essentially was the same strategy used by Judge
Castel. Similar to the arguments raised in my Emergency Motion six months ago, Rowe has alleged
judicial corruption and fraud upon the court. This constitutes direct evidence of racial discrimination and
supports my argument that their arbitration agreements were nothing but a "savvy legal loophole" to
allow the company to continue its discriminatory practices without facing any repercussions from the
Court or the public. (Pl. Opp. Motion, 3.) It also sheds light on why the appearance of racism has shifted
over the decades from being blatant and overt to something that's very covert, out of the sight of
consciousness and insidious. , 50. Those individuals writing the emails were ultimately the same
individuals who determined how far I would advance in the company and due to their bias, made sure that
I never advance., 46-49, 71-87, 103-135.
6
This becomes even more troublesome because the group most represented in positions of power
throughout William Morris and Hollywood are always the first to accuse others of being "anti-Semitic."
-8-
My second public interest argument briefly discussed William Morris and Hollywood's (e.g.
talent agencies, film studios, television networks, and the media) "cabal-like practices" and its direct
effect on shaping the thoughts, values, beliefs, behavior, etc. of millions of human beings throughout the
world via powerful communicative mediums such as television and film. ( ~ 62-69; Emergency Motion,
15-16.) In Joseph Burstyn. Inc. v. Wilson, 343 U.S. 495 (1952), the Supreme Court expressed that film
was a "significant medium for the communication of ideas." According to "State of Media: TV Usage
Trends Q2 2010" data released by Nielsen, there are an estimated 286 million persons in the U.S. viewing
an average of 143 hours of television each month. ("Exhibit D") As our nation's education ranking
continues to decline globally, television has become a large source for how Americans receive
information. The research indicates that these mediums of "social conditioning"
7
are a major source for
unconscious racism
8
and have the ability to distort our views on race as early as age four. If bias exists
amongst those who have the power and control over the marketplace of ideas - from our news to film -
the Court must consider what effect this has on the millions absorbing these subtly tainted messages and
how that influences their views - consciously and unconsciously- on race.
I didn't realize it at the time, but these anticompetitive practices constitute a violation of federal
and state antitrust laws under the Sherman Act, 15 U.S.C. 1 et seq. and Donnelly Act, General
Business Law 340 et seq. It's a no brainer that if there were African American music Agents employed
throughout the company, business relations with black promoters would have improved. The same can be
said for television and film Agents. ~ 5 9 , 65. At this stage, it's extremely hard to call the actions of
William Morris and others throughout Hollywood a "conspiracy" when there is direct evidence of
company executives referring to African Americans as "nigger" more than three hundred times. These
additional causes of action will be included in my amended complaint, but the Court must also determine
7
Tim Wise. Colorblind: The Rise of Post-Racial Politics and the Retreat From Racial Equity. p. 82-83. (2010)
8
Charles R. Lawrence III. Id, Ego and Equal Protection: Reckoning With Unconscious Racism. 39 Stan. L.
Rev. 317 ( 1987); Also look up information on the Implicit Association Tests (IA Ts ).
-9-
whether arbitration is an appropriate forum to achieve the public policy goals of the antitrust statutes as
well.
When a claim is "capable of repetition, yet evading review," issue mootness cannot exist. See,
e.g., Honig v. Doe, 484 U.S. 305, 317-18 (1988); Roe v. Wade, 410 U.S. 113 (1973); Southern Pacific
Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911). As long as there are zero or a
gross underrepresentation of qualified African American Agents, Coordinators and Agent Trainees
working at William Morris, this "issue" will always be "capable of repetition, yet evading review"
because the case will be compelled into arbitration. Whites cannot be discriminated against because of
their race, color and/or national origin in this workplace, so this only applies to people of color. (Pl. Opp.
Motion, 10-11.) William Morris has been made aware of their discriminatory practices over eight decades
and has instead, decided to keep its exclusionary tactics "frozen." (Pl. Opp. Motion, 7.) As a result, "[t]he
defendant is free to return to his old ways. This, together with a public interest in having the legality of
the practices settled, militates against a mootness conclusion." See United States v. W.T. Grant Co., 345
U.S. 629, 632 (1953). If this arbitration agreement is enforced, then it is highly unlikely that any minority
employee would be able to successfully bring a cause of action against this company for racial
discrimination in a public forum.
These compelling arguments should have demonstrated to an impartial Court that not only were
the "discrimination" and "retaliation" provision unconscionable and tainted with illegality, but arbitration
was an inappropriate forum to achieve the public policy objectives of the Civil Rights Act of 1964 and
various other statutes. Employers must be held more accountable for the "effects" of their discriminatory
practices, policies and/or procedures by incorporating a structural account of disparate treatment theory
into case law. (Pl. Opp. Motion, 4-5; Emergency Motion, 15.) See also, Griggs v. Duke Power Co., 401
U.S. 424 (1971). Since my appeal was not "moot," and the Second Circuit did have jurisdiction to hear
the appeal, Judges Lynch, Hall and Chin should have applied the law and articulated its reasoning for
upholding Judge Castel's erroneous decision compelling this case into arbitration. The en bane Court, as
well, should have articulated its reasoning for denying my Motion for Reconsideration.
-10-
C. A JUDICIAL OPINION SHOULD HAVE BEEN ARTICULATED WHETHER APPEAL
WAS GRANTED OR DENIED. UNETIDCAL ACTIONS OF COURT HAVE VIOLATED
NUMEROUS CANONS OF THE JUDICIAL CODE OF CONDUCT.
Judicial opinions are integral to the function of the American judicial system, acting as the
"vehicles by which the judiciary elucidates, expounds upon, and creates rights for Americans."
9
The
Supreme Court stated in Marbury v. Madison, 5 U.S. 137, 177 (1803), that "[i]t is emphatically the
province and duty of the judicial department to say what the law is. Those who apply the rule to particular
cases, must of necessity expound and interpret that rule." Marbury requires judges to give reasoned
opinions in cases that call for explanation. Opinions offer insight into a judge's state of mind. Since
majority of the appointed judges deciding this appeal don't "face bigotry and discrimination on the basis
of color or a legacy of oppression and unequal opportunity dating back generations," ignoring evidence of
discrimination in a racial discrimination case raises extreme concerns that I'm not receiving equal
treatment under the Constitution's 14th Amendment.
In State v. Casey (1923) 108 Or. 418,217 Pac. 632 (denying motion to recall mandate (1923) 108
Or. 386, 213 Pac. 771), the Court stated, "[A] mandate may be recalled by the appellate court for the
purpose of correcting errors, or for making clear the meaning and effect of the judgment made in the
appellate court." Where the mandate is ambiguous, the result of mistake by the court, or does not express
intent of opinion upon which it is based, it should be recalled and new a mandate should be issued stating
intent of the court. See State Farm Mut. Ins. Co. v. Superior Court. Pima County, 15 Ariz. App. 3, 485
P.2d 593 (Div. 2 1971).
Whether my appeal is granted or denied, my arguments should not have been ignored. Due to
harmful and erroneous actions of both Courts, it's not surprising that numerous Canons have been
violated, including: Canon 1 ("A judge should uphold the integrity and independence of the judiciary.");
subsections (A) and (B) under Canon 2 ("A judge should avoid impropriety and the appearance of
impropriety in all activities"); subsections (A)(l) ("A judge should be faithful to, and maintain
9
Ali:tya V. Curtin, Gerald Lebovits and Lisa Solomon. Ethical Judicial Opinion Writing. The Georgetown
Journal ofLegal Ethics. Vol. 21. p. 244. (2008).
-11-
professional competence in, the law and should not be swayed by partisan interests, public clamor, or fear
of criticism."), (A)( 4) ("A judge should accord to every person who is legally interested in a proceeding,
and that person's lawyer, the full right to be heard according to law."), (B)(5) ("A judge should take
appropriate action upon learning of reliable evidence indicating the likelihood that a judge's conduct
contravened this Code or a lawyer violated applicable rules of professional conduct.") and (C)(1) ("A
judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might
reasonably be questioned."); as well as Canon 4 (D)(3) and Canon 5 (A)(3).
In order to prevent manifest justice, I ask that the entire record be reviewed, and the en bane
Court articulate its reasoning for granting or denying my appeal in the form of an objective and reasoned
judicial opinion.
D. HARMFUL ACTIONS REFLECT INSTITUTIONALIZED RACISM WITHIN AMERICA'S
JUDICIAL SYSTEM AND A LARGER CONSERVATIVE CONSPIRACY TO EVISCERATE
MANY OF THE GAINS MADE DURING THE CIVIL RIGHTS MOVEMENT.
In order for me to make sense for why the Court has made so many harmful errors with my case,
as well as Rowe. it required knowledge of history and an understanding of the "intersection between
racism, politics and the law." (Reply Em. Motion, 9-10.) I wasn't allowed to fully present my reasons to
explain why I believed an appearance and/or actual bias existed with Judge Castel other than the fact that
he ignored my entire argument, omitted pertinent facts and misapplied the law. However, I knew without
a doubt that Judge Francis was corrupt and needed to be rescued due to his involvement with Rowe and
the fact that he speaks on panels to help employers defend against discrimination. (Em. Motion, 18-20.)
Although a full discussion on this topic would fill volumes, I am focusing on the last 32 years to explain
why the various judges in both racial discrimination cases against William Morris have chosen to evade
the substantial evidence of discrimination and subjectively apply the law (or not apply the law at all) in
order to prevent these cases from being decided by a jury. Additionally, it will explain why the research
discussed earlier has concluded that EEO began to stall less than twenty years after the passing of the
Civil Rights Act of 1964.
-12-
For twenty out of the last thirty-two years, the Republicans have led what has been labeled by
many writers and scholars as the "conservative legal revolution"
10
- an effective strategy that has
systematically halted the progress made during the civil rights movement of the 1950s and 1960s. Writer
Charlie Savage oftheNew York Times explains:
"As presidential politics began more and more to determine the nature of judicial policy and politics,
the Supreme Court reflected this new trend, as Republican presidents nominated like-minded judges
to the bench. The Court became the means by which Republican presidents could ensure the end of
liberal civil rights policy because Justices have life tenure. These justices promulgated a formalist
position on civil rights that marked a return to narrow concepts of jurisprudence and a rejection of
liberal judicial activism. In the eyes of activists, the Supreme Court was no longer an articulate voice
in favor of civil rights and liberties; instead, it became a threat, for the justices seemed able to limit
precedents or do away with them altogether."
11
By the end of Ronald Reagan's eight years in office, roughly 325 lawyers would be appointed to the
Supreme Court, the appellate courts and the district courts.
12
George H. W. Bush remained faithful in his
selection of conservative judges. Undeniably, many of those appointed were typically white, wealthy
males. For example, Reagan appointed one African American to the Court of Appeals (Lawrence W.
Pierce) out of 83 appointees. As for Bush, he also found one African American to be "qualified" enough
to appoint to the Court of Appeals (Clarence Thomas) out of a total of 23Y Statistically, these numbers
"speak volumes" of discrimination.
Following eight years of the Clinton Administration, George W. Bush continued the agenda of his
ideologically conservative father and predecessors. During his presidential campaign in November 1999,
1
Charlie Savage. "Appeals Courts Pushed By Right By Bush Choices." New York Times. October 28,2008.
http://www.nytimes.com/2008/10/29/us/29judges.html?pagewanted=all; See also JoeL. Selig. The Reagan
Justice Department and Civil Rights: What Went Wrong? 1985 U. Ill. L. Rev. 785 (1985); Jules Lobel and
Barbara Wolvovitz. The Enforcement of Civil Rights Statutes: The Reagan Administration's Record. 9 Black
L. J. 252 (1986).
11
Bernie D. Jones. "Critical Race Theory: New Strategies for Civil Rights in the New Millennium?" Harvard
Blackletter Law Journal. Vol. 18, p. 2-3. (2002)
12
Neil A. Lewis. "The 1992 Campaign; Selection of Conservative Judges Insures a President's Legacy." New
York Times. July 1, 1992. http://www.nytimes.com/1992/07/0l/us/the-1992-campaign-selection-of-
conservative-judges-insures-a-president-s-legacy.html?pagewanted=all&src=pm.
13
A. Leon Higginbotham. "The Case of the Missing Black Judges." New York Times. July 29, 1992.
http://www.nytimes. com/1992/07/29/opinionlthe-case-of-the-missing-black-
judges.html?pagewanted=all&src=pm.
-13-
Bush stated that the most important qualification of a judge was whether the judge would "strictly
interpret the Constitution of the United States," while singling out Justices Antonin Scalia and Clarence
Thomas as justices whom he held in high regard.
14
"We've got to get good, conservative judges appointed
to tlte bench and approved by the United States Senate," Mr. Bush said three years later to more than
1,000 people at the Hyatt Regency Hotel on March 27, 2002YAt this same event, President Bush stated
that he appointed more than a third of the federal judiciary expected to serve after he left office, including
Judge P. Kevin Castel
16
, while considering this to be one of his most enduring accomplishments. A clear
pattern and practice of racism can be observed from the historical evidence alone.
In no way is this to suggest that all judges appointed by Republicans are ideologically
conservative or that only Democrats are "liberal" when it comes to deciding cases involving issues of
civil rights and affirmative action -- that would be extremely naive. Studies have indicated that the
political party of the appointing president is a fairly good predictor of how an individual judge will vote.
The research indicates that there's a relationship between political ideology and their judicial opinions (or
lack thereof) because judges overwhelmingly decide cases according to the philosophical position of the
party that appointed them.
17
This helps explain why Judge Castel - by "any means necessary" --
prevented this landmark civil and human rights case from being litigated in a public forum by ignoring
my argument, omitting pertinent facts and misapplying the prevailing law. (Reply Em. Motion, 7.) It is
largely for this reason as well that both Courts chose to take a rigidly "formalistic" approach in
determining unconscionability or labeling my appeal as "moot" as the case law clearly states that the
14
Elisabeth Bumiller. "Bush Vows to Seek Conservative Judges." New York Times. March 29,2002.
http://www.nytimes.com/2002/03/29/uslbush-vows-to-seek-conservative-judges.html.
15
Bumiller, Id.
16
Will Evans. "Money Trails To The Federal Bench." Center for Investigative Reporting. October 31, 2006.
(discussing results from a four-month investigation of Bush-appointed judges which revealed that six appellate
court judges and 18 district court judges contributed a total of more than $44,000 to politicians who were
influential in their appointments. Judge Castel was included in this report, contributing $2,000 to Bush after he
was nominated in March 2003. This further raises ethical concerns and jeopardizes the public's confidence
Court's impartiality.)
17
Lisa Michalle Ellman, David Schkade and Cass R. Sustein. "Ideological Voting on Federal Courts of
Appeals: A Preliminary Investigation," University of Chicago. September 2003. (conclusions were based on
an examination of more than 4,480 legal opinions, involving politically divisive issues.)
-14-
Courts are to apply a "flexible" approach, on a case-by-case basis. See Brennan v. Bally Total Fitness,
198 F. Supp.2d 377, 383 (S.D.N.Y. 2002) ("In determining whether a contract is unconscionable, a court
should take a 'flexible' approach, examining 'all the facts and circumstances of a particular case.'")
(quoting In re. Estate of Friedman v. Egan, 64 A.D.2d 70 (2d Dept. 1978); see also United States v. Int'l
Bhd. of Teamsters, 955 F.2d 171, 174 (2d Cir. 1992) ("[M]ootness doctrine is flexible and recognizes the
uncertain and shifting contours for Article III justiciability."). Similar to Rowe, both Courts have made a
conscious effort to uphold the interests of whites by not applying the law and ignoring substantial
amounts of evidence demonstrating institutionalized racism. There's no possible way that these judges are
upholding the "integrity and independence of the judiciary" when judges are being largely influenced and
"swayed by partisan interests."
Democrats are not exempt from criticism as well. (Emergency Motion, 16.) Eight of the 13
judges, or 62 percent, sitting in the Second Circuit have been appointed by Democrats. Our current
President has refused to address race and the role racism plays in the allocation of society's benefits and
its burdens. Two of the judges on the original panel deciding this issue (Lynch and Chin) were appointed
by Obama, so it's not surprising that they would also evade discussing race as well. Obama has also been
closely linked to Hollywood, as his former chief of staff, Rahm Emanuel, is the brother of William
Morris' co-CEO Ari Emanuel. I strongly believe that any "objective, disinterested observer" who is privy
to full knowledge of the surrounding circumstances would agree that both Judges Castel and Francis
should be rescued from the case due to an appearance and/or actual bias, prejudice, impropriety and
corruption. United States v. Bayless, 201 F.3d 116, 126 (2d Cir. 2000).
As a matter of law, there should be a unanimous reversal of the erroneous decisions of both of the
lower Courts by the Supreme Court. However, due to the Supreme Court's ideologically conservative
majority, strong opposition is expected. The four justices I believe would grant certiorari based are:
Justices Ruth Ginsburg, Stephen Breyer, Sonya Sotomayor, and Elena Kagan. Each one of these Justices
were appointed by Democrats and reflect racial and gender diversity. The five justices who are typically
unsympathetic to civil rights claims (unless it's for reverse discrimination) include: Justices Scalia,
-15-
Thomas, Anthony Kennedy, Samuel Alito and Chief Justice John Roberts. The Second Circuit is highly
aware of the Supreme Court's conservative majority and is aware that this Court grants certiorari for only
one percent of the petitions filed. If they are already unsympathetic to civil rights issues, then it is unlikely
that the majority would take my petition serious if the Second Circuit has labeled it as "moot." Due to the
exceptional importance of this case and out of respect for the Supreme CoUrt's time and resources, the
Second Circuit should provide its reasoning for upholding or reversing Judge Castel's erroneous decision.
If this case is ultimately compelled into arbitration, there is tremendous concern regarding the
Civil Rights Act of 1964's ability to combat insidious discrimination and the growing blatant racism
made by many Republicans and Tea Party members since Obama was elected into office. It doesn't help
that the Supreme Court has upheld decisions that have ultimately eviscerated many of the gains made
during the first two decades following the civil rights movement. In the 1989 Term, the Court in Wards
Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) overruled a significant part of disparate impact theory
made in the unanimous decision Griggs v. Duke Power Co .. 401 U.S. 424 (1971). For two years,
Congress struggled to pass legislation to reverse a series of damaging decisions by the Court, including
Ward. Bush vetoed the entire Civil Rights Act of 1990 passed by the 101 st Congress, due to his concerns
that the "destructive force of quotas" would be introduced "into our nation's employment system."
18
This
made him the third president in U.S. history to veto a civil rights bill, joining the ranks of Andrew
Jackson and Reagan. Yet his fears were clearly unwarranted if companies, particularly in corporate
America, were ignoring the law and intentionally freezing their discriminatory practices, policies, and/or
procedures to ensure zero or a gross underutilization of qualified "niggers" in the workplace.
19
In the last few years, this "conspiracy" to weaken the Civil Rights Act has become more apparent
as the Courts have decided a number of discrimination cases involving "reverse discrimination" against
18
David Lauter. "Civil Rights Bill Vetoed By Bush." Los Angeles Times. October 23, 1990.
http:/ I articles.latimes. com/1990-1 0-23/news/mn-2 961_1_ civil-rights-leaders. ("The measure's supporters
accuse the President of playing to white conservatives.")
19
"Racial Disparities Persist In Higher-Paying Jobs." Associated Press. April27, 2009.
www.msnbc.msn.com/id/30437468/print/1/displaymode/1098.; See Marc Bendick, Jr., Ph.D. and Mary Lou
Egan, Ph.D, "Research Perspectives on Race and Employment in the Advertising Industry," Bendick and Egan
Economic Consultants, Inc. (2009)
-16-
whites?
0
In the case Ricci v. DeStefano, 129 S. Ct. 2658 (2009), Justice Scalia stated that disparate
impact was potentially "unconstitutional" when ruling in favor of a group of majority white firefighters
for their claims of disparate treatment. Ricci, at 2681-82. This case demonstrates otherwise and the
evidence supports that "in the absence of deliberate efforts to recruit, admit, hire, train and promote
qualified people of color for college slots and professional opportunities, such persons will continue to be
overlooked because of racial bias in the present."
21
If Scalia truly believes this, it demonstrates why
racism is truly a mental disease. In the coming months, the Supreme Court will get another chance to chip
away at affirmative action in higher education with the case Fisher v. University of Texas, 2012 WL
53832 (U.S. 2012), granting cert., 631 F.3d 213, on petition for reh'g, 644 F.3d 301 (5th Cir. 2011) in
which a white female claims that the school's race conscious efforts to ensure an integrated and enriched
academic environment discriminates her and other whites. This is case could potentially reverse Grutter v.
Bollinger, 539 U.S. 306 (2003).
A recent longitudinal study titled "Whites See Racism As a Zero-Sum Game That They Are Now
Losing" confirms the delusional and "pathological nature of white denial."
22
The Harvard Business
School analyzed data compiled over the past six decades and discovered that there has been a "more
general mindset gaining traction among Whites in contemporary America: the notion that Whites have
replaced Blacks as the primary victims of discrimination." ("Exhibit E") The vast majority of whites who
actually believe this, are more likely than not, both ideologically "conservative" and support the
Republican or Tea Party - a large segment of white America. However, the concrete data and facts show
that on nearly every metric studied - employment, education, housing, healthcare, criminal justice system,
etc. -- this belief is false. In the next four months, America will either re-elect a president whose
"colorblind, post-racial approach" has exacerbated white racial resentment or elect a Republican whose
questionable religious faith is deeply embedded in racism and has recently pandered to the right wing by
20
"Does Affirmative Action Punish Whites?'' Associated Press. April28, 2009.
http:/ /www.msnbc.msn. com/id/30462129/ns/us _ news-life/t/does-affrrmative-action-punish-
whites/#.T5fFVatAb_g.
21
Wise. p. 52.
22
Wise. p. 65.
-17-
attacking Rick Santorum' s 1998 vote confirming "liberal judge Sonia Sotomayor" to the Second Circuit.
23
To show that "race" is a political tool to divide, Sotomayor was first appointed to the Southern District of
New York by George H. W. Bush in 1992. Due to the extreme corruption and collusion within our
racially homogenous judicial and political system, a jury reflecting the diversity of New York City should
decide both racial discrimination and antitrust cases against William Morris.
Even if I were afforded a fair hearing in arbitration, the public policy goals of the employment
discrimination and antitrust statutes would not be fully achieved. Although my immediate goal is to
remedy the personal wrongs committed against me by William Morris and its employees, redressing that
injury will allow me to simultaneously further the broader public goal of ending institutional racism and
workplace discrimination. If there wasn't a substantial amount ofhistorical, statistical and other forms of
evidence demonstrating systemic disparate treatment towards African Americans, arbitration would have
been a more appropriate forum for this case. To uncover evidence spanning 114 years of systemic
disparate treatment against African Americans after I was told by company execs that they would "never"
discriminate reflects their reckless indifference to the federally protected rights of African Americans and
why it's time for the company to face a jury. The only way William Morris will change is if a Court order
requires that the Appellees take affirmative steps to overcome the effects of its past discriminatory
practices. Litigating these claims will generate several enforcement mechanisms that are integral to
securing the end of workplace discrimination.
24
Judicial decisions will provide general deterrence and will
also allow the Court to refine the law to develop a structural account of disparate treatment theory, which
would take into account the way a company's "discriminatory organizational structure, institutional
practices and work culture defmed along racial lines" create insurmountable obstacles for minorities to
succeed in the workplace. (Em. Motion, 15.) Finally, this case would educate the public and allow for
meaningful discussion about continuing racism in our "post-racial" society.
23
Ben Jacobs and Harry Siegel. "African-Americans Nowhere to Be Found in Romney's Orbit." The Daily
Beast. April 11, 2012. http://www.thedailybeast.com/articles/20 12/04/11/african-americans-nowhere-to-be-
found-in-romney-s-orbit.html.
24
Geraldine Szott Moohr. Arbitration and the Goals of Employment Discrimination Law. 56 Wash. & Lee L.
Rev. 395 (1999) p. 400.
-18-
Ten months have passed since Judge Castel issued his erroneous decision compelling this case
into arbitration. Last September, I demonstrated the extreme irreparable harm I'm suffering due to the
harmful delay of this case. (Pl. Opp. Motion, 11; Em. Motion, 16-18.) In the midst of writing this Motion,
my unemployment benefits have been exhausted and I am now living below the poverty level. My
gastrointestinal and urinary issues are largely related to stress, and this has only exacerbated my physical
and psychological well-being. My body aches daily and at times, I have been unable to leave my bed. I
am unable to receive medical attention or continue my visits with my acupuncturist. The worse thing o ~
all, is that I have been blacklisted from the industry that I have dedicated majority of life to, while my
white counterparts that I started with have advanced to Agent in less time and are making six figure
salaries without achieving half of what I accomplished due to white privilege. ( ~ 15-24, 54, 56, Em.
Motion Reply, 17.)
The arbitration agreement is one of the many practices, polices and/or procedures which have
allowed William Morris to "freeze" their racially homogenous workplace and created a disparate impact
against African Americans and other persons of color. Teamsters, 431 U.S. at 362 ("The proof of the
pattern or practice supports an inference that any particular employment decision, during the period in
which the discriminatory policy was in force, was made in pursuit of that policy.") It's clear that my race
was a "motivating factor" in preventing me from being an Agent and based on the substantial unrefuted
evidence presented to the Court, "no genuine issue as to any material fact" exists. Therefore, partial
summary judgment should be granted. Fed.R.Civ.P. 56( c). It's clear that race has also been a "motivating
factor" in preventing the Court to remain impartial. As a result of this harmful delay, I am asking that the
Court grant an expedited discovery and jury trial, after reversing Judge Castel's erroneous decision and
disqualify both judges from this case. I believe it is only fair that the Appellees be ordered to pay me for
the total amount of unemployment that I've lost while appealing this matter and any additional damages
that the Court deems appropriate. This would allow me to opportunity to resolve this case and would
allow me to continue my acupuncture appointments.
-19-
America is slowly regressing back to its Jim Crow days of being separate and unequal. Choosing
to remain silent on this issue demonstrates that the members of the "white race" still feel that they are "not
bound" to respect our inalienable rights as human beings or our contributions to civilization and world
history_2
5
If the Court is unable to remain impartial and keep its biases at bay in a case challenging
institutional racism in the workplace, then the only logical remedy for African Americans at this juncture
in history will be to litigate a case against the United States and appropriate parties for reparations due to
its "crimes against humanity" -- slavery, legal segregation and continuing discrimination - and the unjust
enrichment that has been accumulated at our expense?
6
CONCLUSION
A motion to stay a court's mandate, pending the filing of a petition for a writ of certiorari, should
be granted because (1) the certiorari petition will present "substantial question[s]" and (2) there is "good
cause" for a stay. Fed. R. App. P. 41(d)(2). These arguments theoretically could have been raised to the
Supreme Court; however, due to the exceptional importance of this issue, the Second Circuit needs to
provide an explanation based on the law for whatever decision it decides to make after full consideration
is given to the arguments of both parties. To protect the integrity of this Court, I ask that the Court recall
the mandate and either: (1) vacate its improvident order and articulate the en bane's opinion for granting
appeal or (2) articulate en bane's opinion for denying appeal and stay the mandate for 90 days, pending
the filing and disposition of a petition for a writ of certiorari with the Supreme Court.
25
See Cheikh Anta Diop, The African Origin Of Civilization: Myth or Realty (1957); Yosef A.A. ben-
Jochannan, African Origins of the Major 'Western Religions' (1970); Tom Burrell, Brainwashed: Challenging
the Myths of Black Inferiority (2010); Jack Gratus, The Great White Lie: Slavery, Emancipation and Changing
Racial Attitudes (1973); Michael J. Klarman, Unfinished Business: Racial Equity in American History (2007);
Ira Katznelson, When Affirmative Action Was White (2005); J.A. Rogers; Nature Knows No Color-Line
(1952); Rogers, Sex & Race Vol. 1 (1967); Carter G. Woodson, The Mis-Education ofthe Negro (1933);
Malcolm X, The Autobiography of Malcolm X (1964).
26
Joe R. Feagin. Documenting the Costs of Slavery, Legal Segregation and Contemporary Racism: Why
Reparations Are in Order For African Americans. Harvard BlackLetter Law Journal. Vol. 20, 2004; William
Darity, Jr. Forty Acres and a Mule in the 21st Century. Social Science Quarterly. Volume 89, Number 3,
September 2008; Allan D. Cooper. From Slavery to Genocide: The Fallacy of Debt in Reparations Discourse.
Journal of Black Studies. 2012; See also Eric Williams, Capitalism and Slavery (1944).
-20-
Dated: New York, New York
May 3, 2012
Respectfully submitted,
r
By: 3Vl ~ 0 J 2 .<) 4:a t::
Marcus t\ii/ashington
Brooklyn, NY 11206
(646) 504-6497
-------------------------------------------------------------X
WASHINGTON,
Appellant,
v.
WILLIAM MORRIS ENDEAVOR
ENTERTAINMENT, LLC, et al.,
Appellees.
-------------------------------------------------------------X
11-3576-CV
AFFIRMATION OF APPELLANT'S
MOTION TO RECALL MANDATE
AND VACATE IMPROVIDENT
c
ORDER, PENDING THE FILING AND
DISPOSITION OF A PETITION FOR
CERTIORARI
"'' ;z: =
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GJ fTl 0 ::E:
I, Marcus I. Washington, affirm under penalty of perjury that:
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1
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1. I, Marcus I. Washington, am the Appellant in the above entitled action and
....... 1--.
this affirmation to the motion dated May 3, 2012 made by myself asking that the tht?t
following relief: recall the mandate and either ( 1) vacate its improvident order and -;:-
bane's reasoning for upholding or reversing erroneous decision of Judge P. Kevin oF(2)
articulate en bane 's reasoning for denying the appeal and stay the mandate for 90 days, periding the
filing and disposition of a petition of certiorari to the Supreme Court.
2. I have personal knowledge of facts which bear on this motion because as a former employee of
William Morris Endeavor Entertainment, I am a victim of their discriminatory practices, policies and
procedures.
3. The motion should be granted because: (1) the Court's power to recall its mandate is
"unquestioned," (2) as a matter oflaw, personal stake or issue mootness does not exist, and (3) a
judicial opinion should have been articulated due to the "exceptional importance" of the issue.
Furthermore, judicial corruption and bias amongst members of the Court has to be addressed.
4. Attached hereto as Exhibit A is a true and partial copy of Exhibit C from my Complaint filed
December 21, 2010 detailing the racial makeup of William Morris from September 2008 and April
2010.
5. Attached hereto as Exhibit B is a true and correct copy of Shelly Baumsten discussing how she
became William Morris' first female Agent Trainee in 1975. Excerpt taken from David Resin's The
Mailroom published in 2003.
6. Attached hereto as Exhibit Cis a true and correct copy of expert testimony of Joe R. Feagin, Ph.D
in the case Rowe Entertainment. Inc. v. William Morris Agency, Inc., 2005 WL 22833 (S.D.N.Y. Jan.
5, 2005). The report, titled Institutional Racism in the Entertainment Industry: An Opinion Regarding

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m
Racial Discrimination in the Promotion of Concert Performances in the United States, was submitted
to the Court on or about July 31, 2002.
7. Attached hereto as Exhibit Dis a true and correct copy of"State of Media: TV Usage Trends Q2
2010" released by Nielsen on or about November 18, 2010.
8. Attached hereto as Exhibit E is a true and correct copy of a longitudinal study conducted by
Harvard Business School titled "Whites See Racism As a Zero-Sum Game That They Are Now
Losing" released on or about May 18, 2011.
9. In view of the foregoing, it is respectfully submitted that the motion should be denied.
I declare under penalty of perjury that the foregoing is true and correct.
Dated: New York, New York
May 3, 2012
Respectfully submitted,
Marcus 'f. Washington
Brooklyn, NY 11206
(646) 504-6497
. '
0 I
Exhibit A
Racial Demographic Breakdown at the NYC office of William Morris Agency (September 9, 2008).
Total: 10*
White: 10, 100%
African American: 0, 0%
Hispanic: 0, 0%
Asian: 0, 0%
Total: 56*
White: 51, 91.1%
African American: 1, 1.8%
Hispanic: 1, 1.8%
Asian: 3, 5.3%
Total: 11
White: 2, 18.2%
Hispanic: 5, 45.4%
Asian:O, 0%
Coordinator
Assistant/Floater
Agent Trainee
Support Staff (HR, accounting, reception, IT, special services, etc.)
Mailroom Staff
*Double counting occurs at the Agent Trainee, Assistant/Floater and Coordinator levels.
Total: 52
White: 51, 98.1%
Hispanic: 0, 0%
Asians: 1, 1.9%
Total: 56*
White: 46, 82.1%
Hispanic: 2, 3.6%
Asian: 2, 3.6%
Indian: 1, 1.8%
Total: 31
White: 19, 61.3%
Hispanic: 3, 9.7%
Asian: 1, 3.2%
In the classic "glass ceiling" pattern of occupational segregation, African Americans and other minorities are restricted and disproportionately clustered into
the lowest levels of responsibility, authority and influence within the organization.
Racial Demographic Breakdown at the NYC office of William Morris Endeavor Ent. (AprillO, 2010).
Total: s
White: 8, 100%
Hispanic: 0, 0%
Asian:O,O%
Total: 30*
White: 26, 86.7%
African American: 2, 6. 7%
Hispanic: 1, 3.3%
Asian: 1, 3.3%
Total: 7
White: 2, 28.6%
Hispanic: 3, 42.8%
Asian: 0, 0%
Coordinator
Assistant/Floater
Agent Trainee
Support Staff (HR, accounting, reception, IT, special services, etc.)
Mailroom Staff
Total: 50
White: 49, 98%
Hispanic: 0, 0%
Asian: 1, 2%
Total: 65*
White: 58, 89.2%
Hispanic: 2, 3.1%
Asian: 2, 3.1%
Total: 23
White: 13, 56.5%
Hispanic: 2, 8.7%
Asian: 1, 4.3%
After telling former co-workers that I was going to sue the company for discrimination, I was informed that the company hired five African American (and other
minorities) floaters in July 2010. This is neither coincidence nor a panacea for a century long history of institutional racism and discriminatory practices.
' .
' '
Exhibit B
HOLLYWOOD HISIDRY
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William Morris Los Angeles, 1974-1977
BRUCE BROWN, 1974 ALAN IEZMAN, 1974 JACK RAPKE, 1975
DENNIS BRODY, 1975 ALAN SOMERS, 1975 GARY RANDALL, 1975
CHUCK BINDER, 1975 SHELLEY BAUMSTEN, 1975 RICHARD MARKS, 1975
BOB CRESTANI, 1976 GARY WCCHESI, 1977
Randall. Rapke. Somers. Brody. myself. The chemistry was
undeniable. We were emotionally connected. Every one of us
liked every other one of us. Our mind-set came out of the
sixties. For us it was Woodstock. It wos about embracing the
good things in the world. not the bad things. We took that
peace-and-love notion fairly seriously.
-Alan Jezman
ALAN SOMERS: I was politically active, a surfer, and into the vegetarian
communal lifestyle. After graduating from UC Santa Barbara with a de-
gree in psychology, I still didn't know what I wanted to do. I took the
year off, an Endless Summer sojourn, surfing my brains out, trying to get
a handle on my life. I came up with the idea of med school in Costa Rica
and then realized I was kidding myself. I tried law school at Southwest-
ern, but it also wasn't for me. I gave the media a try and did graduate
studies at the Annenberg School at USC. But after a big disagreement
with my faculty adviser I began to get a little desperate. I'd kicked around
too much. I needed to create a career opportunity for myself. The twist is
that there had always been an opportunity in my family, but I'd never
looked at it that way.
Abe Lasrfogel was the great-uncle of my best friend, Robert Elswit.
Robert's .a director of photography who did Magnolia and Boogie
Nights. Mr. Lastfogel's sister, Sarah Elswit, was Robert's grandmother.
She raised him after his parents died in a plane accident. Robert and I
went to Sunday school together. I went with him to the Hillcrest Coun-
try Club on special occasions. Over the years Sarah and I also got very
close. One Friday I was so despondent, I told her, "I think I want to be
an agent."
"Do you really want this?" she asked. Robert's older brother had gone
J.U David Rensln
his ankles. He told .me stories about how he and my uncle used to piss
on people's lawns after important political parties. I felt like I was in a
Woody Allen .movie. I tried to find in that moment some due as to how
I might fit into the business.
My father turned out to be the key. He was a stockbroker. His client
Ruth Engelhardt was of business affairs at Wdliam Morris. He set
me up, and she got me the interview with Chuck Booth.
People always talk about how they had to wait to get inro the .mai.l-
room. It's changed significandy, but then it was a matter of riming, and
of something else: Certain types were shoo-ins, like the young Jewish
man, a college grad. and. anyone who was reasonably attractive-or at
least not Occasionally they would stretCh it because, with
a mix of personalities, you never know who's going to make a good
agent. The day I started, Jim Houston, the first black in the mailroom,
also started. Within a month Shelley Baumsten, the first woman in the .
William Morris training program, was hired. Things were changing;
SHUY BAUMSTEI: I got out of college with a degree in literature and
no thought given to what I wanted to do in life. Getting into show
had not been my lik's ambition, but I met a woman who
suggested I mighr want to get into a literary agency. Olcay, good iqea.
My brilliant follow-up( I opened the yellow pages and looked under

I wrote a particularly literate letter and got a couple of positive re-
sponses. One was from the firm Adams, Ray and Rosenberg; which at
the time was a really top-notch agency. The senior partner. Adams,
wrote, "Dear Mr. Baumsten: We're interested in. your qualifications. We
have an entry-level position, so please phone fOr an interView."
Mr. &um.lten?Oerical error, not important.
Adams was an dderly. portly guy, and the entire interview consisted
of "fm not going to hire you because you're a woman." Straight out. .
"When your kids get sick, you're going to have to stay home with
them."
I said, "I don't have any kids."
"When your husband gets tranSferred, you're going to have to leave .
with him."
"I don't have one of those, either."
I kne'W I could sue. bud didn't want to waste my time. Besides, on
.,,
THE 'W
some level I &ct that I didn't
ba:ve to rack my brain about why I didn't get the job.
I finally went to work with Jane Jordan Brown; she had a one-
woman operation. A year later I ran into a woman I'd grown up with.
She was married to Ron Mardigian, an agent at William Morris. When
she heard that I was in the agency business, she suggested that I meet
with her husband. We had coffee at my mother's apartment: Merle,
Ron, my rnom; and I.lt was very casual. Ron told me that the company
had brou&f.lt people through the mailroom fOr fifty years. give or
but never a woman. They'd decided it was time. . ,.
CHUCK BINDER: I was already in law schoo.l--tuaJly. getting thrown
our of one after the other-and made money teaChing tennis in Beverly
Hills. Most of the reachers in the seventies were guys wbo didn't make it
on the tour, so they gave lessons and hit on the rich guys' wives and
daughters. Through some doctors I knew, I ended up teaching Eva
bor. I didn't even know who she was, but they said she was a big star,
and gave me some advice: "You charge us ten hQcks an hour to hit the
ball Charge her bucks. She wont think you're a high-grade
tennis teacher otherwise." When I went to her house, I was stunned. I'd
never met anybody with a tennis court in her backyard. Her servants
gave me Coke in a crystal glass.
I was thrilled to be in the center of a wealthy environment making
my hundred bucks a day. Mel Brooks and his wife, Anne Bancroft, took
lessons. I taUght people who ran studios. I hung around aob .Evans's
house. I taUght Larry Gelbart's kids. They hated tennis, so they'd say,
"Take us down to Thrifty's and buy us an ice cream cone."
But my dad wasn't pleased and said I had to find a real job. He was a
tough guy from New York's Lower East Side who liked to say. "If I
could just have put you in the army for two years, they would have
made a man out of you." He wanted me to go downtoWn to the gar
ment industry, but I wasn't interested. I was thin, in shape, had long
hair. I said I would marry a Beverly Hills girl and that would be it
fOr me.
"You're a dreamer," he said. "Come into my company.'" My dad was
a window cleaner, and compared With Standing in someone's backyard
hitting tennis balls, that was really hard worL
Then Bob Shapiro, the number-two guy in the William MorTis'

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Exhibit C

INSTITUTIONAL RACISM IN THE ENTERTAINMENT INDUSTRY: AN OPINION
REGARDING RACIAL DISCRIMINATION IN THE PROMOTION OF CONCERT
PERFORMANCES IN THE UNITED STATES
Dr. Joe R. Feagin, Ph.D.
UF Graduate Research Professor
Department of Sociology
University of Florida
1
I. INTRODUCTION
1. I am Dr. Joe R. Feagin, Ph.D. (Harvard, I 966), a Graduate Research Professor in
sociology at the University of Florida. Since 1964 I have been conducting research and analysis
of U.S. racial relations, and I have published seventeen books and dozens of articles that deal
directly and centrally with various aspects of racial discrimination in the United States, in
addition to numerous other books and articles that deal to some degree with these issues. A list of
my publications is attached, along with a list of other cases in which I have testified at trial or by
deposition within the preceding four years, and disclosure of the basis of compensation for the
time devoted to preparation for this case (see Appendix).
2. Since the late-1970s I have published a numberofmajor books, including one
with Beacon Press called Living with Racism ( 1994) and another with M. E. Sharpe called
Double Burden: Black Women and Everyday Racism ( 1998), that focus on the
racial discrimination regularly experienced by African Americans, including discrimination in
businesses and workplaces. Since 1988 l have been the leading social science researcher in
conducting field research studies on racial discrimination affecting African Americans. I have
supervised or personally conducted interviews with several hundred African Americans in
numerous field research studies, including some that have focused on discrimination against
black businesses. 1 am currently finishing up another research book that deals with the impact
and costs of the discrimination faced by middle class African Americans.
3. My research work on discrimination has been regularly used in a number of
corporate and university settings, as well as in Department of Defense courses (for example, the
Equal Opportunity Adviser Course) since 1980. I am regularly asked to give lectures to
2
...
r .
university groups and military conferences dealing with racial discrimination. I am a recent past-
president of the 13,000-member American Sociological Association.
4. I was asked to prepare a report that examines what my own research and the
related social science literature tell us about racial discrimination in regard to African Americans
and then to assess the extent to which I see that racial discrimination reflected in the reported
experiences of African American promoters as described in the amended complaint and other
Rowe, et al. v. William Morris, et al. case materials.
5. Based on my longterm research on the racial bias and discrimination targeting
African Americans in the United States, on the amended complaint, and on the statistics and
other case materials, I have come to the professional opinion that the accounts and incidents
recounted by the black promoters in these case materials for the concert promotion industry
constitute racial bias and exclusionary discrimination. Furthermore, in my professional opinion
these accounts and incidents are more than a matter of a few isolated instances, but rather
indicate well-institutionalized and systemic racial discrimination.
6. This racial discrimination is generated by, and centered in, the operations of a
white-dominated concert promotion network. While the case materials that I have reviewed do
not reveal a written agreement on the part of whites in the concert promotion business to exclude
African American promoters, these case materials do indicate that powerful whites operate
informally, through what they themselves term the "concert promoting fraternity" and the "good
old boy network," to exclude black promoters from almost all of the more significant business
opportunities in the concert promotion industry.
3
II. INSTITUTIONALIZED RACIAL PREJUDICE AND DISCRIMINATION
A. Racial Discrimination
7. The importance of a sociological perspective is that it directs us to pay careful
attention to the social processes, contexts, and consequences of phenomena such as racial
prejudice and discrimination. Over the last few decades social scientists have done much
important conceptual and empirical research on the character and conceptualization of
discrimination as it operates in various U.S. institutions. Working as a pioneer in explaining the
nature of prejudice and discrimination, Harvard professor Gordon Allport focused on the
prejudice and discrimination of individuals. As he and subsequent researchers have seen it, few
prejudiced people keep their prejudices to themselves but act out these feelings in discriminatory
ways.'
8. Drawing on Allport and subsequent research, we can view racial discrimination
here as actions carried out by members of a dominant racial group that have a differential and
negative impact on members of a subordinate racial group. Racially discriminatory practices take
various forms-subtle, covert, and blatant forms-and restrict the opportunities of, and social
rewards going to, those in racially subordinate groups. Discriminatory behavior has both effects
and mechanisms. Effects refer to the negative impact and costs; mechanisms refer to particular
types of actions that generate the harmful effects. Contemporary research and analysis also
suggest that the motivation for racial discrimination can vary. Sometimes an individual's
discrimination reflects an array of racial prejud.ices and stereotypes of the discriminator himself
or herself, and sometimes it reflects the discriminator's concern for the prejudices and
stereotypes held by significant others in the relevant social networks. It is also the case that a
4
I
discriminator can hold relatively liberal attitudes in some areas of his or her racial thinking. yet
also harbor some negative racial images or stereotypes in yet other areas of his or her thinking.
Moreover, it only takes one negative image or stereotype to trigger serious discrimination on the
part of some discriminators.
2
9. Since the 1960s social scientists, including the author, have developed the concept
of institutional or systemic racial discrimination. This concept was developed to capture the
social, cumulative, and institutionalized aspects of modem racial discrimination. Examples of
institutionalized discrimination include not only formal segregation-such as that once faced by
African Americans in business, employment, and public accommodations, which lasted into the
1960s--but also the large-scale, infonnal discrimination documented in recent research, as will be
discussed below. Institutional discrimination refers to the patterns of actions shaped by the
nonns, rules, and understandings of the social organizations and networks of the dominant racial
group, in this case white Americans, actions that have a negative impact on a subordinate racial
group.
3
In the case of racial discrimination these norms, rules, and understandings can be formal
or infonnal.
10. Today, institutionalized discrimination, whether in hiring at a corporate
workplace or in contracting in the entertainment industry, is typically carried out by white
individuals, acting alone or in groups, who implement the shared norms, rules, and
understandings of their organizations and networks. White individuals have the power to
discriminate as individuals, but much of their power to hann comes from membership in white
organizations and social networks, a type of social structure that one social scientist calls
"enforcement coalitions. "
4
5
B. Racist Attitudes: Still Conrnrolfplace
11. In the routines of everyday life, the discriminatory norms and understandings
imposed by white enforcement coalitions are usually linked to, and perpetuated by. the antiblack
prejudices and stereotypes still held by a majority of white Americans. When African Americans
encounter whites in a broad array of contemporary settings, they often meet negative beliefs
about their abilities, values, and orientations. Racial barriers persist today because a majority of
whites harbor antiblack sentiments, images, and beliefs and because a large minority are very
negative in their racist perspectives. Many whites still think in racialized terms when they choose
mates, neighborhoods, employees, business partners. and workplace buddies.
12. For example, a 1992 national survey by the Anti-Defamation League reported that
a majority of whites subscribe to one or more anti-black attitudes and stereotypes. Evaluating a
list of eight antiblack stereotypes, about three quarters of whites agreed with one or more, and
55 percent agreed with two or more.
5
White men were a bit more likely to hold anti-black
attitudes than white women. While less prejudiced as a group, a large proportion of college-
educated whites also agreed with at least one of the antiblack stereotypes. A 1994 NORC
national survey asked whites to evaluate on a scale how work-oriented African Americans are.
Only a small percentage of whites, some 16 percent, ranked black Americans at the hardworking
end; nearly half chose the lazy end.
6
In a 2001 national survey by Harvard researchers, 58
percent of white respondents agreed with one or more of these traits as applicable to African
Americans: lazy, aggressive/violent, prefer to Jive on welfare, or complaining; 34 percent agreed
two or more were applicable.
7
In national surveys, majorities of whites still admit openly to
holding some negative stereotypes about African Americans.
6
C Discriminatio11 i11 B11siness a11d Otlter Societal Sectors
13. Discriminatory practices by white managers, white business owners, and other
whites remain commonplace. Several studies of various business enterprises. including my own
research studies, have found continuing discrimination against African American employees by
white supervisors, managers, owners, and peers. In the area of employment. a Los Angeles study
found sixty percent of more than a thousand black respondents reporting discrimination in
workplaces in the previous year.
8
Those with more education were more likely than those with
less to report such discrimination. Corporate enforcement of anti-discrimination laws in
workplaces remains weak. One Department of Labor review examined 4,179 U.S. companies
and found three quarters to be violating federal regulations by not recruiting widely, by
discrimination in hiring, or by not having an affinnative action plan.
9
A survey of 40,000
military personnel, with which the author assisted, found that nearly half, or more, of the African
American respondents had encountered racist jokes, offensive racial discussions, or racial
condescension in the last year.
10
White managers and business owners have been found to
discriminate in various settings. Recent housing audit studies have found high rates of
discrimination for black renters and home buyers. In numerous city studies, when their
experiences were compared with those of white tester-renters, black tester-renters were found to
have faced discrimination some 60-80 percent of time depending on the city. For example, in a
2001 study in Houston, a rental audit study using 40 paired testers found the discrimination rate
was 80 percent in attempts to rent by African Americans. Discrimination took the form of openly
discriminatory policies, misinformation about the housing, and differential treatment in regard to
7
-.

appointments and terms of contracts. A 200 I Boston audit study found anti-black discrimination
by owners or mangers in 60 percent of the tests.
11
14. African Americans have faced major racial barriers in getting into business for
several centuries. Recent studies of African Americans in various business settings have found
extensive reports of racial exclusion or other discrimination in developing and growing a
business. One NERA survey of a large number of African American and other businesses in a
major state found that 44 percent of the black businesses had experienced discrimination in the
last five years.
12
In several in-depth i n t e ~ i e w studies of African Americans in business and
other middle-class occupations, 1 have found numerous respondents who speak eloquently of the
many concrete obstacles to building a business, either as merchants, contractors, or independent
professionals. The deliberate and unconscious discriminatory actions of white businesspeople
frequently limit or channel black success in business.
13
15. One successful black entrepreneur in Michigan has commented thus: "Bottom
line, racism is a business problem even after you get the money. My business could be supplying
a plant, and they find out who owns this company and all of a sudden there's something wrong
with my parts. This is racism; it's everywhere and it's institutionalized."
14
According to those
who have spent much time studying black business activity, racist practices by whites largely
account for data that show that in the private business sector minority enterprises--even when
size, age, and type industry are controlled for--are only half as likely to sell to other firms
(business clients) as similar white male-owned firms. Less business usually does not mean less
effort or capacity. One leading scholar of African Americans in business, Timothy Bates,
8
.................... ______________________ ___

concludes that entrenched networks, not firm capacity differences, are at the root of these
differentials in market access.
15
INSTITUTIONALIZED DISCRIMINATION
IN THE CONCERT PROMOTION BUSINESS
A. Tile Whiteness of tile Ta/e11t Agencies and Co11cert Promotio11 Busi11ess
16. There is a long history of institutionalized racism against African Americans in
the entertainment industry. Numerous studies have shown that historically African Americans
have been excluded from key areas of the industry, restricted to certain stereotyped roles and
positions in entertainment, and discriminated against in the conditions of performances or in
compensation.
16
The statistical data on the concert promotion sector of the entertainment
industry are indicative of continuing and institutionalized patterns of racial exclusion and
discrimination. As reported in the amended complaint (pp. 25-26), the data on major concerts
examined for June 1998 to May 1999 show that black promoters promoted not a single white
concert; whites got 100 percent of the contracts for these major concerts. Black entrepreneurs
promoted only three percent of the many black concerts in this period, with white promoters
promoting the other 97 percent. Moreover, in his deposition the veteran black entertainer Bill
Cosby assesses his nearly forty years of live concerts and reports {pp. 29-31) that, out of an
estimated several thousand concert promoters, he has only had three black promoters. In spite of.
the significant historical role of African Americans in the entertainment industry, there are today a
small nwnber of black promoters, as compared with the many white promoters who now get
almost all of the significant promotion business. In addition, according to the Light deposition (p.
614), the very first African American agent ever employed in the music department of CAA was
hired only well after the lawsuit was filed. The lawsuit materials suggest that, with very rare
9

exceptions, African Americans have been excluded from serving as agents with the major white-
controlled talent finns.
17. These statistics are extremely skewed in favor of whites. Given the historical role
of African Americans in the U.S. entertainment industry, this nearly complete exclusion of
African Americans in the promotion ~ f major concerts and as major agents is especially striking
and signals well-institutionalized racial discrimination.
B. "Good Old Boy" Networks: A11 Overview
18. The business sectors that constitute the U.S. market system are each more than a
collection of unconnected businesses and random individuals: Several research studies
examining various U.S. businesses and industries have shown that important areas of these
industries encompass fonnal organizations and informal relations that are often structured and
dominated by networks of white managers and entrepreneurs, what many call "buddy-buddy" or
"good old boy" networks.
17
These are typically white-dominated or exclusively white.
19. Gallo's study of white, African American, and immigrant entrepreneurs in one
New York industry found successful contracting firms depended on high levels of "institutional
and social integration, which is expressed by membership in industry organizations and by
informal connections and the achievement of standing in the community from which the firm's
clientele is likely to be drawn."
18
White finns had major advantages. Moreover, as one statewide
report dealing with discrimination against minority businesses put it, "the tendency for white
men to choose to associate more with other white men leaves minorities and women again
disadvantaged."
19
I have also conducted several studies of African American businesspeople that
uncovered recurring examples of discrimination similar to those reported in the amended
10

complaint and other case materials. For example, in an early 1990s study of African American
businesspeople--construction subcontractors and other local businesses--in the Miami-Dade area
I found numerous respondents describing the white "buddy-buddy" networks that were central to
the construction and related industries there. As the black businesspeople have experienced it.
there is a powerful network of dominant white individuals and businesses with a history of
interlocking relationships. The racial discrimination often took the form of white contractors'
strategies to exclude black subcontractors from their construction projects or of racial harassment
at the job site. I also found many African American businesspeople describing exclusionary
discrimination practiced by banks, bonding agencies, and suppliers. Numerous contractors talk
about the buddy-buddy system and their lack of integration into white-dominated networks.
20
In
this study and others that I have done, African American respondents have frequently
how white businesspeople in the critical business networks often act to exclude, impede, or
restrict participation of black businesses. Thus, I have had professional and other business
respondents describe how white firms give their African American colleagues only less desirable
work or exclude them from joint ventures.
21
Many white businesspeople are unwilling to give
black firms significant business contracts and a real opportunity to perform, especially on a
recurring and networking basis.
20. In several research studies involving interviews with African Americans across the
United States, I have also found numerous African American businesspeople describing how white
businesspeople have the power to deny black businesspeople not only business but also access to
the most important business networks, those that provide the important information and training
that would help them become more successful. Refusal of entirely or mostly white business
11

networks to work with African American professionals and other businesspeople can lock the latter
out of much business and therefore stunt their business growth. Thus, when whites control the
business networks, they also can control the rules of the business game. A commonplace
problem reported by African Americans in business and the independent professions is that
whites not only control many of the important procedures and rules for doing business but they
also change those procedures and rules to suit their own individual or group ends. Changing the
informal rules of the business game to assure the exclusion or limitation of black businesspeople is
a common tactic in the white-dominated business world.
C. Tile Wllite Fraternity: Tile Concert Promotion B11siness
21. In his deposition (pp. 96-104 ), one of the white owners of a major promotional
firm, Alex Cooley, brought up spontaneously what he terms the "good old boy network" in the
concert promotion industry. He cited this good old boy network as one of the important reasons
why black promoters have so little access to promoting white artists. He clearly indicates that this
influential good old boy network in concert promotion today does not include any black
promoters. And he agrees further that the reality of white agents dealing for many years, beginning
during the overt segregation em, with white promoters means that" ... it's easier to call somebody
you know and then how they're going to react and what they're going to do and everything, yes.
So people do that, yes." (p. 98).
22. Similarly, in his deposition (pp. 39-48), promotion company executive Bruce
Wavm spontaneously mentions the importance of what he terms ''the concert promoting fraternity"
as a source of information and power in today's music business. He says that this powerful
fraternity is indeed a group of people who share "a common interest." When asked who are the
I
.:
t
12
. - ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --- .

I
I
;

"members of the fraternity," Wavra makes a long list of promoters and agencies, yet does not
mention even one African American promoter in the process. While he later remembers some
black promoters, they did not come to his mind until he was specifically questioned about them.
Both Cooley and Wavra view the powerful "good old boy network" or "fraternity" as all white.
and as the organizational network that has controlled the concert promotion business for some
time. Indeed, though the specific people in this network have changed from time to time, the
exclusive and white-controlled network of strongly linked individual and company ties has
remained. This powerful network has controlJed the concert promotion business for decades,
beginning in the era of overt racial segregation.
23. Today, this infonnal old boy network retains control of the concert promotion

industry and excludes African American promoters from most important concert promotion
opportunities. In his deposition, one oft he major white promoters, Ronald Delsener (p.
123), openly admits that African Americans are not given an equal opportunity in the promotion
of white contemporary artists.
24. A set of business events in regard to a Memphis amphitheatre, described in the
amended complaint, indicate how this white-dominated network has operated in a particular case:
The City of Memphis initially decided to continue doing such business with Fred Jones
and Summitt. While still negotiating the terms of an exclusive agreement to promote
shows in the venue Mud Island Amphitheatre in Memphis, Fred Jones and Summitt wrote
to many booking agency defendants and others, including Rose Agency, William Morris,
QBQ, Monterey, APA, CAA, as well as to Billboard, PolJstarand Performance
magazines, advising them of his expected role as concert promoter at that venue. Beaver
Productions' executive Barry LetT, however, then wrote to the Memphis Director of
Parks Commission, urging the City not to enter into any agreement with Fred Jones and
Summitt, and infonning the City that Beaver would be opening an office in Memphis,
where it had not previously done business, expressly at the request of the top talent
agencies in the country. Fred Jones and Summitt lost the agreement to promote at Mud
Island and all ensuing business. Beaver is now the predominant promoter in Memphis.
13
I
25. In t ~ i s case an important black promoter was shut out of much local promotion
business after some initially favorable negotiation with the city, because of the intervention of
white talent agencies and a white promoter (Beaver Productions). The case materials lend much
support for this point. Only when the local ~ b i t e promoter (Bob Kelly) died, according to the
Jones deposition and the Barrey Leff letter (April 20, 1998), did Beaver Productions seek a
central role in concert promotion in Memphis. Indeed, the Leff letter explicitly notes that the
Beaver Productions intervention occurred because they were "asked by the top talent agencies"
to do so. In addition, the letter makes it clear that the city should seriously consider Beaver
Productions because if "an exclusive agreement is entered into with any other party. it will cause
us to take our shows to other facilities in the market." Here again we see the white concert .
fraternity--the networking among white-controlled talent agencies and white promoters-
operating to exclude a black promoter from significant local promotion business.
26. In addition, in his deposition (pp. 596-597, also pp. 982) Fred Jones also describes
an earlier case of a black promoter who helped initially with Isaac Hayes yet was pressed to give
up Hayes to white promoters, and then Jones sums up the institutional patterns in discrimination
against black promoters that he has seen since 1971: " ... it's a product of the pattern ofbehavior
that black promoters are excluded. It's been very clear ... that pattern of behavior among the
defendants has not changed."
D. Otlrer Examples of Networking and Exclusion
27. In the accounts in the amended complaint and other lawsuit materials, we see
numerous examples of this "concert promoting fraternity" or "good old boy" network in
operation. We view a recurring pattern of discrimination in connection with this powerful
14
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. - - - - - - - - - - - - - - - - - - - - - - - - - ~ - - - - - - - - - - - - - - - - - - --- -

~
..
network, from which the black promoters are excluded and many whites are included. We see
examples of exclusionary networking involving white agencies and white promoters in these
detailed examples, among others that are in the amended complaint:
During the 1970's, plaintiffs Rowe. Rowe Entertainment. Lee King and King Promotions
promoted and nurtured a black music group known as The Commodores, during which
time the group's popularity increased. However, when The Commodores' lead singer.
Lionel Richie, became a major solo performer, his booking agency, Rose Agency.
excluded all of the plaintiffs from the promotion of his solo concerts, instead retaining
promoter defendants continuously until the present time, to promote his concerts. (p. 32)
In the late 1970s, plaintiffs Jesse Boseman and Sun Song promoted concerts given by the
Artist formerly known as Prince at a time when the Artist was merely the opening act for
a then headlining performer, Rick James. In promoting such concerts, those plaintiffs
helped the Artist achieve his own following. The Artist has now achieved star status. but
his booking agency, CAA, now retains only promoter defendants to promote the Artist's
concerts, including his 1998 tour.(p. 32)
In the late 1980's and the 1990's, William Morris excluded plaintiffs from promoting
shows given by William Morris' black artists the Temptations, Barry White, Earth Wind
& Fire, War and Lauren Hill. The promoter defendants were given promotion contracts
for these acts. In 1998, Electric Factory was given the exclusive contract to promote
nationwide tours of Earth Wind & Fire and Barry White. Both of these acts were
previously promoted by Rowe and Rowe Entertainment .... (p. 34)
In or about 1979 and 1980, plaintiffs Rowe Entertainment, Sun Song Productions and
Lee King Productions successfully promoted a major national tour of 70 cities performed
by Michael Jackson and the Jacksons. At that time, Triad, an agency later taken over by
William Morris, represented the Jacksons and had attempted to prevent plaintiffs from
promoting these concerts. The Jackson family, however, insisted that plaintiffs Rowe and
Rowe Entertainment be contracted to promote the entire tour. By the following year,
however, the Jacksons were represented by Rose Agency. When a new tour was
announced in 1981, Leonard Rowe, Jesse Boseman and Lee King all contacted Howard
Rose of Rose Agency to attempt to promote it. Mr. Rose refused t<? allow any of them to
participate in the tour, and has always done business exclusively with white promoters
.... (pp. 39-40)
28. These descriptions of exclusion of black promoters and inclusion of white
promoters illustrate not only the discriminatory actions of those in the dominant industry
network, but also the way in which this dominant network sets the rules of the business game.
15
................ ________________________ __

29. In these cases, the black promoters had helped to make African American artists
develop and become more visible when they were less prominent. There is some evidence in the
lawsuit materials that leading figures in the white concert fraternity ignore this important
experience on the part of black promoters in developing relatively new entertainers. Thus. once
these African American entertainers became much better known. according to these and other
accounts in the case materials, the white-dominated talent agencies, with rare exceptions,
reserved this business for white promoters and excluded the black promoters from promoting the
most prominent African American artists. As the amended complaint indicates, this is contrary to
industry practice: "While it has long been customary in the concert promotion industry for white
promoters to continue promoting the concerts of highly popular artists whose concerts they
handled prior to such artists having become star performers, different standards have been
applied to black promoters." The rules of the business game are changed for the black promoters.
30. The summary description in the amended complaint of this pattern is similar to
accounts of restriction or exclusion that I have gotten in interviews with numerous African
American businesspeople: "Because of an all-white concert promotion fraternity, the black
concert promoters are systematically excluded from the promotion of concerts given by white
performers .... In addition, plaintiffs are regularly excluded from the promotion of concerts
given by top-drawing black performers." (p. 2) Severe restriction of access to, or exclusion from,
important business-generating and business-information networks is a commonplace problem
reported by black businesspeople across the United States. This problem is more than a matter of
racial bigotry, for it is an example of well-institutionalized discrimination reminiscent in some
ways of the recent era of blatant and overt segregation, an era that ended only in the late 1960s.
16
E. Limitilrg Black Busi11esses to Less Profitable or Desirable Are11as.
31. In my own research studies and those of other social scientists. we have found a
pattern of discrimination like that indicated in the reports of racial channeling in the amended
complaint. In my research studies, I have had a number of African American describe
how whites try to limit their businesses to predominantly black constituencies, less desirable
business areas, or very small projects--a type of business .. ghettoization. I have had professionals
describe how more powerful white finns and companies try to channel black finns to black clients
or exclude them from joint ventures.
22
The steering or chrumeling of black businesspeople and
middle class workers has been found in other studies. For example, a field study by Sharon
Collins involved 76 interviews with leading black executives in major corporations. Most were
found to be more or less ghettoized in positions oriented to business for black communities,
affinnative action, or civil rights issues-positions usually providing little opportunity to move
up corporate ladders.
23
32. We see examples of this type of channeling discrimination in the accounts in the
amended complaint (as above) where black promoters have been restricted by the white-controlled
talent agencies to handling, almost entirely, Jess well known black artists.
F. Discrimilratimr ;, bifornratioll
33. In my research studies of African American businesspeople, 1 have found
numerous respondents describing how whites use misinformation, late infonnation, or related
tactics to deflect black businesspeople or to effectively exclude them from contracts. In these
studies, experienced black subcontractors and other businesspeople often report getting the
runaround in seeking infonnation from white businesspeople and government officials.
17
............... ______________________ __

. .
Misinformation or late information thus restricts one's ability to compete for business, if one is
not entirely excluded in the process. We see this example of the use of misinformation to deflect
or restrict black businesspeople in the amended complaint:
In coMection with concerts to be given by the Grammy award-winning R&B performer.
Erykah Badu, a black performer, and not long prior to release of Ms. Badu' s debut album
in early 1997, plaintiff Jesse Boseman telephoned Badu 's agent, Cara Lewis at William
Morris, and asked to promote Badu's concerts .... Lewis, who personally knows
Boseman, denied that Badu was scheduling concerts. In or about March 1997. Mr.
Boseman asked Ron Delsener of Delsener/Slater to telephone Lewis and inquire whether
Badu was scheduling concerts. Delsener thereupon telephoned Lewis and was informed
that Badu was in fact scheduling concerts and, in Boseman's presence, Delsener obtained
from Lewis the rightto promote a May 1997 concert to be given by Badu at the Supper
Club in New York City. After Badu's second album was released in November 1997. the
BPA telephoned Lewis at WiBiam Morris to request concert dates for Badu's 1998 tour.
Lewis assured the BPA that there were no concert dates plaMed. Within a month
thereafter, however, the promoter defendants were assigned numerous Badu tour dates by
William Morris. (p. 33)
Exclusion from timely and accurate information is part of the operation of the c o n c e ~ promoting
fraternity.
G. Creating Fina11cial Hurdles
34. In my previous field research, African American businesspeople often report yet
another hurdle. This hurdle involves white companies, including large contractors, suppliers,
banks, and bonding firms, setting financial barriers that are not applied to similarly situated white
firms.
24
We see an example of this tactic in the Toni Braxton account in the amended complaint:
Black artist Toni Braxton was promoted by plaintiffs Rowe and Boseman before she
became a superstar. Once she became a star, however, plaintiffs were excluded from
promoting her shows. In connection with a tour she was scheduled to perform with white
artist Kenny G in 1997, CAA made misrepresentations to plaintiff Rowe. After Rowe
made inquiry concerning plaintiffs' being able topromote her concerts, Rowe was
advised by Mike Piranian of CAA in October 1996, that minimum artist guarantees of
$225,000 to $275,000 per show were required from any of the plaintiffs, with a fifty
(50%) deposit required upon contract signing. Plaintiffs later learned that the defendant
promoters, who were actually retained to promote these concerts, were required to
guarantee only $150,000 to $175,000 per show. No white promoter, including any of the
18

promoter defendants promoting this tour, was required to submit a deposit of any more
than 0 - l 0% of the $150,000-175,000 guarantee. The effect of this discriminatory and
disparate practice was intended to eliminate all black promoters. including all of the
plaintiffs, from the bidding process on the Toni Braxton tour. (p. 35)
35. This account shows how black promoters suffer racially differential treatment in
at least two ways. First, it again reveals how black promoters, in some instances. are allowed to
help groom upcoming black artists only until they become prominent. In addition. we see
discrimination in the minimum artist guarantees, in this case to an important black promoter. We
should note this black promoter (Leonard Rowe) is one whom the f o ~ e r white head of the CAA
music division, Tom Ross (pp. 160, 260), admits is an experienced promoter who can handle
very substantial financial offers ..
36. Another example is the manner in which the subsequent head of the CAA music
division (Rob Light) simultaneously offered a better set of financial arrangements to a white-run
promotion firm than to one of the black plaintiffs in connection with concert arrangements for a
major African American artist, while indicating to the black promoter that both were getting
similar terms. See Light testimony at pp. 120-153, and Exhibits 10, II, 17, 21 and 24.
H. Hand-picked Minority Firms
37. Several research studies, including my own, of the problems faced by black and
other minority businesspeople have found that large white firms sometimes select inexperienced
(or even "fronting") minority firms ~ n order to look better to the public in their own business
practices.
25
There is one example that suggests this practice of choosing an inexperienced
minority firm for show in the amended complaint:
These defendants, acting in concert, "engaged" a company called Magic Johnson
Enterprises (MJE), named after a black basketball star, Magic Johnson, as purported co-
promoter of the Maxwell tour, in lieu of engaging any of the plaintiffs. Neither Magic
Johnson nor MJE has any experience in the concert promotion business. Defendants'
19
Go'\
:.v
conduct is a maneuver designed to create the false illusion that defendants' have engaged
a black promoter on the Maxwell tour. (p. 34)
Such selections can assist a.controlling white network in excluding more experienced African
American firms.
I. Promises But No Work
38. In my field research studies, I have had numerous black businesspeople report
that they obtained verbal commitments or formal letters of intent from white firms indicating a
desire to do business, yet in the end received no actual business from the white firms. This is not
a rare occurrence. Such verbal commitments and letters of intent are sometimes used by white
contractors and other white firms to deflect minority businesspeople or to make it appear as if
they are doing business with minority firms when in fact they are not.
26
There is this example in
the amended complaint:
Prior to the filing of this action, plaintiffs sought the opportunity to promote concerts
given by black R&B artist Maxwell, Rolling Stone Magazine's Breakthrough Artist of
1996. The BPA contacted Jeff Frasco in or about June 1998, an agent at William Morris's
Beverly Hills office, who verbally committed to having black promoters involved in
Maxwell's concerts. Shortly thereafter, however, plaintiffs discovered that promoter
defendants had been retained to promote concert dates for Maxwell, and that plaintiffs
were excluded. (p. 33)
39. In addition, a summary statement in the amended complaint describes
discrimination similar to that recounted in interviews with my African American business
respondents: "On occasion, certain booking agency defendants have dismissed plaintiffs'
demands by falsely representing their intention to offer certain concert promotion contracts to
plaintiffs, knowing that they would never do so." (p. 42)
J. Getting Contracts Only with Pressure
40. In my Miami-Dade study and other research on African American firms that I
have done, I have had numerous African American businesspeople report from their everyday
20
-

experiences that a major pressure that has lessened the severity of racial exclusion by white
companies is that of set-aside programs requiring the use of minority contractors by white firms
getting government contracts.
27
While there is no set-aside program in the entertainment
industry--which may partially account for the nearly total exclusion of black promoters from
concerts of major white artists--there is evidence in two cases that the threat of external pressure
was important in getting a few contracts for the black promoters:
Defendant Magicworks was given the exclusive contract to promote a tour given by
superstar black performer, Janet Jackson, in 1998, by defendant CAA. Magicworks co-
promoted the tour with the other promoter defendants. Several of the plaintiffs had
previously promoted Janet Jackson shows in 1994, and had also promoted her superstar
brother, Michael Jackson. Plaintiffs protested and were allowed to only co-promote
shows in New York and Los Angeles with defendants Delsener/Siater and Magicworks.
(p. 39)
Plaintiffs became enraged upon learning of this treatment, and announced that they
intended to picket the concert. CAA and William Morris eventually allowed plaintiffs to
co-promote a few of the Toni Braxton shows with the defendant promoters. The promoter
defendants who promoted the Toni Braxton concerts were aware of the plaintiffs'
inquiry, and were forced to co-promote certain shows with plaintiffs, over their
objections. Certain of the promoter defendants were particularly insistent about excluding
plaintiffs. (p. 36)
Without this pressure, there would likely have been no contracts. Such action should not be
necessary in a free and fair market system. These examples again signal just how strong and
entrenched the "good old boy" networks are.
4 J. Note here that only after protest were black promoters given some participation.
in the Toni Braxton (a black entertainer) and Kenny G. (a white entertainer) tour, despite the fact
that the black promoters, as noted above, had played a role in Braxton's early development. In
negotiating the new arrangements, top CAA music executive Light explicitly promised in a letter
to two black promoters that in regard to future concerts. the black "promoters group wiJJ be
given an equal opportunity to make offers in the same manner as any other promoter interested in
21
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(Jl
..
a given market." (Light Exhibit 38). Yet the record before and after this 1997 letter suggests that
such equal opportunity promises are insubstantial. for. apart from a few cases like the above, the
white talent agency and promotion firm networks have ignored pressure from black promoters to
open up the industry on a truly equal opportunity basis. See Light, pp. 521-524.
K. Racial Prejudice mrd Stereotypi11g Backstage
42. Today, as the research studies cited above clearly demonstrate, much racial
discrimination by white Americans is well-institutionalized, yet the key decisions generating
much racial discrimination are often taken behind closed doors. Such behind-the-scenes
decision-making is indicated in concepts like the "concert promoting fraternity." lt is only
occasionally that African Americans get to see backstage, to view the racial prejudice and
.stereo'typing shaping the discrimination. For example, in one of my interviews with a black
businessperson, she describes how hard it was to win a business contract:
It was a struggle. And, after the evaluation panel had made a decision that I had the
highest points and the best management program, and the track record they recommended
me, and they took it back to their department. And the [white male] director of the their
department made a very racial statement, that they were very sick and tired of these
"niggers" and these other minorities because what they think is that they can come in
here and run a business, none of them are qualified to run a business, especially the
"niggers." A white female heard this statement, and because they had had some
confrontational problems-1 think that's the only reason she told me .... I had to really do
some internalizing [of the situation] to keep myself from being very bitter. Because you
know there are so many roadblocks out there ....
43. This African American entrepreneur describes a major racial barrier to getting a
business contract. She only learned of the racist motivation for the white discriminator's attempt
to exclude her because a white person told her what went on behind the scenes.2
8
Two current
research studies, including one that I am currently conducting, are beginning to demonstrate
what the aforementioned opinion surveys only suggest: That there is still much blatant prejudice
22
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, ~ ..

and stereotyping among white Americans, including among well-educated white Americans. but
it is mostly expressed in backstage settings, such as among white friends and buddies. The
intensity and blatant character of this racial prejudice and stereotyping in the backstage
contradict much public discussfon about the declining significance of individual white racism in
U.S. society.
44. One sees some evidence of racist attitudes in the backstage arena of the concert
promotion industry in the depositions. In one of the depositions. Fred Jones (p. 805) notes that he
heard a white official with one of the white promotion companies say the following during a
conference call (without knowing Mr. Jones was present):" ... why you all got to deal with that
nigger any way. And he tried to clean it up but it was very clear to me." He adds a little later in
regard to the comment, that "Racism is something you deal with all the time .... But those kinds
of things you don't forget." In addition, in his deposition a white promoter, Alex Cooley (p. 96),
notes that" ... yes, racism very well in some cases could raise its head in there. You know, the
hidden racism of some guy, just say, no, I don't want to work for that guy .... "In addition, in
his deposition another white executive (Wavra) (pp. 121-23) reports on racist jokes made by a
white promoter in his presence. Ron Delsener, furthermore, testified that he has "used racism" in
the concert promotion business. (Delsener pp. 60-61 ).
45. In the amended complaint, we also see a summary suggesting yet other negative
views that black promoters have experienced, views indicating at a minimum disrespect:
On some occasions, certain defendants have even ridiculed plaintiffs' demands, laughing
in plaintiffs' faces at the very suggestion of contracting with black promoters to promote
concerts to be performed by white and major black artists. (p. 42)
Indeed, in his deposition (p. I 06) Bill Washington recounts how in his presence a top white agent
at a major firm laughed about the Black Promoters Association and thought it was a joke.
23

'
L Tire Accumulatilrg Conseque11ces of Discrimination
46. As with other black Americans, a black businessperson's experience with racial
discrimination is typically much more than a matter of a few isolated over the course of a
career. It usually means a accumulating series of discriminatory events. often with
and serious economic and health consequences. Two dimensions o(the bias and discrimination
suffered by African Americans are the "multiplier effects" and "amplifying effects." While black
businesspeople have problems like all businesspeople, the normal business problems are usually
compounded many times by discrimination in the present or in the past. For example. one
disparity report for our second largest state has reported that minority business enterprises are
hurt economically in_ several ways by racial discrimination; discrimination not only reduces their
size but also curtails their opportunities to grow.
29
47. In the amended complaint, we see the impact that discrimination in the past or in
one area has on one's ability to compete and grow in other areas. For example,
In the 1980's, plaintiff Rowe made a proposal to promote concerts at the Atlanta city-
owned amphitheatre, Chastain. He met Andrew Young, then Mayor of Atlanta, in
approximately 1984, to seek his assistance. Rowe was advised that Alex Cooley of
Concert/Southern had also sought the business. Because the City realized that Rowe
could not bring white acts to Chastain, while Concert/Southern could promote both white
and black acts, the contract was given to Concert/Southern. Because the booking agency
defendants would not pennit Rowe to promote any oftheir white contemporary music
acts in Atlanta, or even their top black artists, Rowe could not obtain the city contract to
promote shows at Chastain. (p. 41)
48. Being unable to get contracts for white artists not only signaled racial
discrimination in itself, but also cut this black promoter out of other possibilities, as here in
promoting at an amphitheatre in Atlanta. Those responsible for serious discriminatory actions
against black businesspeople in the recent past, or in other business areas in the present, are thus
24
often responsible, at least in part, for the negative economic consequences for a black person s
business later in time.
49. In my field research studies on African American businesspeople and other
African Americans, I have found that the damaging economic effects are not the only serious .
effects of racial discrimination on African Americans. Recurring discrimination by whites often
creates serious stress-related health consequences. In my research studies, many middle-class
African Americans report a broad range of negative health consequences that are aggravated, if
not created, by the many and serious stresses of recurring racial bias and discrimination. These
include hypertension, chronic headaches, chest pains, lack of energy to participate in community
organizations, and serious bouts of depression.
30
One retired black professor with his own
consulting business signals just how much pain discrimination causes in this quote from one of
my research studies:
I feel betrayed. Sometimes I feel very cynical. Most of the time I feel that I live in a
country where I'm still not respected as a person. I lived at a time when I was told that if I
got a good education, did all the right things, that I could be anything I wanted to be. I got
a good education. I did all the right things, but even today I run into situations where my
opportunity structure is limited because I am black. Se, I found that all along that no matter
what I did, no matter how hard I tried, limitations were placed on me strictly because of the
color of my skin.
31
50. In the plaintiffs' depositions, I see similar frustration and a sense of limitation
because of race. Not surprisingly, sentient human beings react seriously, in their minds and
bodies, to recurring and pervasive racial discrimination.
CONCLUSION:
INSTITUTIONAL RACISM IN THE CONCERT PROMOTION BUSINESS
51. In summary, a sociological perspective underscores the importance of social and
institutional contexts of human behavior. We see these important contexts well highlighted in the
25

materials for this case. As described by the African American promoters in the amended
complaint and other lawsuit materials, there is no free and competitive market in the concert
promotion business. According to these black businesspeople, as well as some \vhite
businesspeople, whites constitute an exclusive and powerful ''fraternity'' or "good old boy
network," one that.does not now allow the market in concert promotion to operate freely and
fairly. The accounts in the amended complaint and the statistics and other data in the record
strongly indicate that equality of business opportunity does not currently exist in the concert
promotion business in the United States. The rationality ofthe market is not allowed to operate
because of the discriminatory racial actions taken by numerous whites in the dominant network
of white-controlled agencies and promotion firms.
52. Clearly, trying to do business in the concert promotion industry involves a serious
and difficult struggle for the black promoters. They are situated in a business world whose major
rules are often not of their own making, one with racial hurdles that they must overcome if they
are to stay in, or grow in, this business arena. Significantly. their accounts of discrimination and
excJusion by the black promoters do not stand alone. Numerous research studies that I and other
social science researchers have conducted, across the nation. show that in many business sectors
there are similar barriers of racial bias and discrimination for African Americans seeking to
develop and grow a business.
M. Reiterated Conclusio11
53. Based on my extensive and longterm research on the racial bias and
discrimination targeting African Americans in the United States, on the amended complaint, and
on other case materials, I have come to the professional opinion that the accounts and incidents
26

recounted by the black promoters for the concert promotion industry are similar to accounts and
incidents described by many other African American businesspeople. and that they thus
constitute serious racial mistreatment and discrimination. Furthennore. I conclude that these
accounts and incidents are more than a matter of a few isolated instances but rather demonstrate
knowing, commonplace, continuing, and institutionalized disct:imination in the operations of the
U.S. concert promotion business.
27
-
ENDNOTES
1
Gordon Allport, The Nature of Prejudice (Abridged edition: New York: Anchor Books. 1958 ).
2
See Joe R. Feagin and Clairece B. Feagin. Discrimination American Style (Englewood Cliffs. NJ: Prentice-Hall.
1978).
3
Ibid.
4
Randall Collins, Theoretical Sociology (New York: Harcourt. Brace, Jovanovich. \988}. p. 406.
=- Anti-Defamation League, Highlights from an A mi-Dejamation League Survey on Racial Auitudes in America
(New York: ADL, 1993}.
6
National Opinion Research Center, "1994 General Social Survey."
1
Lawrence Bobo, "Inequalities that Endure?: Racial Ideology, American Politics. and the Peculiar Role of the
Social Sciences," paper presented at conference on "The Changing Terrain of Race and Ethnicity," University of
Illinois, Chicago, Illinois, October 26, 200 I.
8
Lawrence D. Bobo and Susan A. Suh, "Surveying Racial Discrimination: Analyses from a Multiethnic Labor
Market," in Prismatic Metropolis: Inequality in Los Angeles, ed. Lawrence D. Bobo. Melvin L. Oliver, James H.
Johnson, Jr.; and Abel Valenzuela, Jr. (New York: Russell Sage, 2000), pp. 527-529.
9
Summarized in Pamela Mendels, "Up for Evaluation; Is Affirmative Action Still Working After 30 Years on the
Job?" Newsday, June 13, 1995, p. 6.
10
Jacquelyn Scarville et al., Armed Forces Equal Opportunity Sm.,,ey (Arlington. VA: Defense Manpower Data
Center, 1999), pp. 46-78; seeaJso Office of the Under Secretary of Defense Personnel and Readiness, Career
Progression of Minority and Women Officers (Washington, DC: Department of Defense. 1999). pp. 46-85.
11
See Fair Housing Council of Fresno County, "Audit Uncovers Blatant Discrimination against Hispanics, African
Americans and Families with Children in Fresno County," press release, Fresno. California. October 6, 1997;
Central Alabama Fair Housing Center, "Discrimination in the Rental Housing Market: A Study of Montgomery,
Alabama, 1995-1996," Montgomery, Alabama. January 13, 1996; Fair Housing Action Center, Inc .. "Greater New.
Orleans Rental Audit," New Orleans, Louisiana, 1996: San Antonio Fair Housing Council, "San Antonio
Metropolitan Area Rental Audit 1997," San Antonio. Texas. 1997; Greater Houston Fair Housing Center. "Houston
Rental Audit," Houston Texas. 2001; and Fair Housing Center of Greater Boston, "We Don't Want >'our Kind
Living A Report on Discrimination in the Greater Boston Rental Market,'' Boston, April 200 I.
12
National Economic Research Associates, The State of Texas Disparity Swdy (Cambridge. ).
13
Joe R. Feagin and Melvin P. Sikes, Living with Racism: The Black Middle Class &perience (Boston: Beacon
Press, 1994); see also Joe R. Feagin, "Black Contractors and Subcontractors in the Dade County Construction
Industry: A Portrait of Racial Discrimination," Dade County, Florida. July 1991.
28
.................. ____________________ _

4ft
. ..
14
Michael D Woodard, Black Entrepreneurs in America: Stories of Struggle cmd Success (New Brunswick. N. J. :
Rutgers University Press, 1997), p. 154.
IS Timothy Bates, Strategies for the Black Worker: Preparing/or the 21st Century (Washington. D.C.: Joint Center
for Political and Economic Studies, 1997).
16
See Jan Pieterse, White on Black: Images of Aji-ica And Blacks in Western Popular Culture (New Haven: Yale
University Press, 1992); Darlene C. Hine, William C. Hine. and Stanley Harrold. The African American Uc(1ssey
(Seconded.; Upper Saddle River, NJ: Prentice-Hall, 2003), pp. 457ff.
17
See Roger Waldinger and Thomas Bailey. "The Continuing Significance of Race: Racial Conflict and Racial
Discrimination in Construction," Politics and Societv 19 (1991 ): 291-323.
18
Carinenza Gallo, "The Construction Industry in New York City: Immigrant and Black Entrepreneurs." Working
Paper, Conservation of Human Resources Project, Columbia University, New York City. 1983. p. 25).
19
National Economic Research Associates, The State ofTexas Disparity Swdy, p. 125.
20
Joe R. Feagin, "Black Contractors and Subcontractors in the Dade County Construction Industry: A Portrait of
Racial Discrimination," Dade County, Florida, July 1991; also Joe R. Feagin, "Black Vendors in Dade County: A
Complex Portrait of Racial Discrimination," Dade County, Florida. July.l991.
21
Ibid.; and Feagin and Sikes, Living with Racism.
22
Feagin and Sikes, Living with Racism; Feagin, "Black Contractors and Subcontractors in the Dade County
Construction Industry."
23
Sharon Collins, "Blacks on the Bubble: The Vulnerability of Black Executives in White Corporations."
Sociological Quarterly 34 (August, 1993): 429-447.
24
Feagin, "Black Contractors and Subcontractors in the Dade County Construction Industry''; Feagin. "Black
Vendors in Dade County"; and Feagin and Sikes. Living with Racism.
25
Feagin, "Black Contractors and Subcontractors in the Dade County Construction Industry''; Timothy Bates and
Darrell Williams, "Preferential Procurement Programs and Minority-owned Businesses," Journal of Urban Affairs
17 ( 1995): 1-17; National Economic Research Associates. The State of Texas Dispwi(l' Study: see also Maria
Enchautegui,; Michael Fix, Pamela Loprest, Sarah von der Lippe, and Douglas Wissoker Do Minority-Owned
Businesses Get a Fairs Share of Government Contracts? (Washington, D. C.: Urban Institute, 1996), pp 50-51).
26
Feagin, "Black Contractors and Subcontractors in the Dade County Construction Industry''; Feagin, "Black
Vendors in Dade County."
27
Feagin, "Black Contractors and Subcontractors in the Dade County Construction Industry"; Feagin, "Black
Vendors in Dade County."
29
.e
.
------
f.]!
\{'
28
Leslie Ann Houts, J o ~ R. Feagin, Tracy Johns, "One Step From Suicide: The Holistic Experience Of Being Black
In America," paper to be presented at American Sociological Association Meetings. Chicago. Illinois. August. 2002.
29
National Economic Research Associates, The State of Texas Disparity Study, p. 168.
30
See Joe R. Feagin, Kevin Early, and Karyn D. McKinney, "The Many Costs of Discrimination: The Case of
Middle-Class African Americans," Indiana Law Review 34 (200 I): 1313-1360.
31
Feagin and Sikes, Living with Racism, p. 222.
30
Dr. Joe R. Feagin, Ph.D.
UF Graduate Research Professor
Department of Sociology
University of Florida
................. -------------------------

..
. ----------------
- -----------------
--------------------
. '
. .
Exhibit D
11ielse11

State of the Media
TV Usage Trends: Q2 2010
The amount of television viewing in the U.S. remains high. In the second quarter of
2010, the average person watched more than 143 hours of television per month. This
average is essentially flat compared to the same period a year ago. The emergence of
the DVR as a widely distributed device has changed viewing behaviors in many homes.
The average person living in a DVR home watched 24 1/2 hours of DVR playback during
this period. Looking at demographic groups more closely, viewers age 25-34 watched
the most television by DVR playback at 291/2 hours per month.
As in past periods, the lowest overall viewing is done by teens, with viewing increasing
with each older age break. And women continue to watch more television than men,
with 54% of all TV viewing consumed by that demographic.
Table 1
Source: The Nielsen Company
Tabl.e 2
9:27 9:36 8:02 17.7% 1:25
24:27 25:48 24:11 1.1% 0:16
Source: The Nielsen Company. Based on Total Users of each Media
Note: TV viewing patterns in the U.S. tend to be seasonal, with TV usage higher in the winter months and lower in the
summer months, sometimes leading to a decline in quarter to quarter usage
1
11ielsen
State of the Media

Tabte 3
6:49 6:01 6:56 12:52
16:13 15:50 19:30 29:29
Source: The Nielsen Company. Based on Total Users of each Media.
Note: Traditional TV and Timeshifted TV viewing estimates are based on persons in TV Households (292 million)
DVR Playback viewing estimates are based on persons in DVR Households (110 million)
Table 4
Table 5
12:15 10:56
28:31 28:45
, , , ,, TV Audience ,.- 2010 tyl,onthly, Time Spent By, Gender, ',' ' ,
\ <<I I ' I , 'I, !
, , , : 1'12-17 ' 1'118-49 M50i. . . , ,' ,FJB-49 F50+
,._ ......... .....
Table 6 Table 7
10:36 6:32 5:57 6:47
6:02 9:27
23:37 24:27
Source: The Nielsen Company. Based on NPM scaled installed counts during 2Q10
25:31 21:04 22:09 19:22
Footnotes to Tables:
0
TV in the home includes those viewing at least one minute (reach) within the measurement period. This includes Live
viewing plus any playback within the measurement period; Timeshifted TV is playback primarily on a DVR but includes
playback from VOD, DVD recorders, server based DVRs and services like Start Over.
TV in the home includes Live usage plus any playback viewing within the measurement period. Timeshifted TV is playback
primarily on a DVR but includes playback from VOD, DVD recorders, server based DVRs and services like Start Over.
Copyright 2010 The Nielsen Company. All rights rese1ved. Nielsen and the Nielsen logo are trademarks or
registered trademarks of CZT/ACN Trademarks, L.l.C. 10/2357
2
. . '
. .
Exhibit E
PSYCHOLOGICAL SCIENCE
Whites See Racism as a Zero-Sum
Game That They Are Now Losing
Perspectives on Psychological Science
6(3) 215-218
The Author(s) 20 II
Reprints and pennission:
sagepub.com/journalsPermissions.nav
DOl: 10.1177/1745691611406922
http://pps.sagepub.com
(j)SAGE
Michael I. Norton
1
and Samuel R. Sommers
2
1
Harvard Business School, Boston, MA, and
1
Department of Psychology, Tufts University, Medford, MA
Abstract
Although some have heralded recent political and cultural developments as signaling the arrival of a postracial era in America,
several legal and social controversies regarding "reverse racism" highlight Whites' increasing concern about anti-White bias.
We show that this emerging belief reflects Whites' view of racism as a zero-sum game, such that decreases in perceived bias
against Blacks over the past six decades are associated with increases in perceived bias against Whites-a relationship not
observed in Blacks' perceptions. Moreover, these changes in Whites' conceptions of racism are extreme enough that Whites have
now come to view anti-White bias as a bigger societal problem than anti-Black bias.
Keywords
racism, zero-sum game, bias, affirmative action
Empathy for one party is always prejudice against another.
-United States Senator Jeff Sessions (R-Ala), July 13,2009
Despite the rush in some quarters to anoint contemporary
American society as "postracial" in the wake of Barack
Obama's election as president, a flurry of legal and cultural
disputes over the past decade has revealed a new race-related
controversy gaining traction: an emerging belief in anti-White
prejudice. Although legal challenges concerning so-called
"reverse racism" date back as far as the 1970s (Regents of the
University of California v. Bakke, 1978), such claims have been
at the core of an increasing number of high-profile Supreme
Court cases in recent years, in domains such as equal access to
education (Gratz v. Bollinger, 2003; Grutter v. Bollinger,
2003) and employment discrimination (Ricci v. DeStefano,
2009}-two of the very issues at the heart of the African
American Civil Rights Movement a half-century ago. We sug-
gest that these trends epitomize a more general mindset gaining
traction among Whites in contemporary America: the notion
that Whites have replaced Blacks as the primary victims of dis-
crimination. This emerging perspective is particularly notable
because by nearly any metric-from employment to police
treatment, loan rates to education-statistics continue to
indicate drastically poorer outcomes for Black than White
Americans (e.g., Bertrand & Mullainathan, 2004; Knowles,
Persico, & Todd, 2001; Krueger, Rothstein, & Turner, 2006;
Munnell, Tootell, Browne, & McEneaney, 1996).
We propose that Whites' belief about the increasing preva-
lence of anti-White bias reflects a view of racism as a zero-sum
game, as evident in the comment above by Senator Sessions
during a recent Supreme Court nomination hearing, which can
be summed up as "less against you means more against me."
Indeed, previous research suggests that White Americans
perceive increases in racial equality as threatening their domi-
nant position in American society (Sidanius & Pratto, 1999),
with Whites likely to perceive that actions taken to improve
the welfare of minority groups must come at their expense
(Eibach & Keegan, 2006). We expected Whites to view
racism as a zero-sum game, such that decreases in perceived
anti-Black racism over the past six decades would be asso-
ciated with increases in perceived anti-White racism.
Although previous research has not examined whether lower
status groups view racism in zero-sum terms, we expected
that Blacks might be less likely to perceive gains for Blacks
as losses for Whites-perhaps due to a view that the permanent
high status of Whites (Jost & Banaji, 1994; Jost, Banaji, &
Nosek, 2004) causes the magnitude of racial disparity to be
so great that gains by Blacks do little to affect Whites. Most
important, we explored the novel prediction that these changes
in Whites' conceptions of racism would be extreme enough
that many Whites would view anti-White bias as the bigger
societal problem.
Corresponding Author:
Michael I. Norton, Harvard Business School, Soldiers Field Road, Boston, MA
02163
E-mail: mnorton@hbs.edu
Downloaded from pps.sagepub.com at Harvard Ubrartes on May 16, 2011
216. Norton and Sommers
1 0 ~ - - - - - - - - - - - - - - - - - - - - - - - - - -
----------
6
- Blacks Rating Anti-Black Bias
5 +----------------------------
- ~ ~ Whites Rating Anti-White Bias
4
- Whites Rating Anti-Black Bias
Blacks Rating Anti-White Bias
---
-----
--
........ -
_____ ..
1 ---.,.--- ------.-------.----
1950s 1960s 1970s 1980s 1990s 2000s
Fig. I. White and Black respondents' perceptions of anti-White and anti-Black bias in each decade.
To test our hypotheses that many Whites now perceive
anti-White bias to be more prevalent than anti-Black bias and
that this view is related to Whites' conception of racism in
zero-sum terms, we asked a large national sample of Black and
White Americans (N = 417; Mage= 50.3, SD = 13.6; 57%
Female; 209 White, 208 Black) to use a 10-point scale (1 =not
at all; 10 =very much) to indicate the extent to which they felt
both Blacks and Whites were the target of discrimination in
each decade from the 1950s to the 2000s.
1
Whites See Anti-White Bias as More
Prevalent Than Anti-Black Bias
We observed no main effects of respondent race, F( 1, 380) = .14,
p = . 71, on overall ratings ofbias. We observed a significant main
effect of decade, such that respondents generally perceived
racism to be declining overtime,F(5, 376) = 26.74,p < .001, and
a main effect of target race, such that respondents overall
perceived greater anti-Black discrimination than anti-White
discrimination, F(1, 380) = 446.38,p < .001. Most important, the
three-way interaction between respondent race, target race, and
decade was highly significant, F(5, 376) = 17.39, p < .001. As
Figure 1 shows, Black respondents perceived decreases in anti-
Black bias over time and relatively nonexistent anti-White bias,
but White respondents perceived anti-Black bias as declining
even more quickly and anti-White bias as increasing sharply-
particularly in recent years. Indeed, we observed a complete
reversal over time in White respondents' views of racism.
Whereas Blacks saw greater anti-Black bias in every decade,
ts(207) ? 20.55, ps < .001, this gap reversed in the 2000s for
Whites: They perceived more anti-White bias than anti-Black
bias, !(208)= -3.94,p< .001.Bythe2000s,some 11% ofWhites
gave anti-White bias the maximum rating on our scale in compar-
ison with only 2% of Whites who did so for anti-Black bias.
In contrast to these results for respondent race, there is no
comparable significant reversal when examining these ratings
across different respondent age brackets or education levels:
There was no main effect for respondent age, F(5, 380) = .71,
p = .62, or respondent education, F(2, 380) = .18, p = .84
(see Figures 81 and 82 in the supporting online materials at
http://pps.sagepub.com/supplemental). Indeed, the analyses
reported above, including the significant three-way interaction,
use respondent age and education as factors, suggesting that
the differences in perceptions between White and Black
respondents are not driven by other demographic differences
between the two groups.
2
We note that despite this recent divergence in perceptions by
respondent race, White and Black respondents' estimates of
bias in the 1950s are strikingly similar, with members ofboth
groups acknowledging little racism against Whites but substan-
tial racism against Blacks. These results suggest that rather than
having different reference points for racism-which might also
account for race-based differences of opinion (Eibach &
Ehrlinger, 2006)-the racial divergence we observe over time
is likely due to recent changes in how bias is conceptualized.
Whites-But Not Blacks-See Racism as a
Zero-Sum Game
As in previous investigations, our results revealed that Whites
see racism in zero-sum terms. For White respondents, ratings of
bias against Whites and Blacks were negatively and significantly
Downloaded from pps.sagepub.com at Harvard Ubrarles on May 16, 2011
Radsm as a Game
Table I. Demographics by Respondent Race
Variable
Education (%)
Some high school
High school graduate
Some college
College graduate
Some graduate school
Graduate school degree
Gender(%)
female
Male
Mean age (SO)
White
I
21
37
18
6
17
55
45
51.4 (14.8)
Black
I
16
50
20
2
II
58
42
49.1 (12.1)
correlated for each decade ( -.30 :=::; r :=::; -.21, all ps < .005;
average r = - .26), suggesting that, within each decade, Whites
linked lower levels of anti-Black bias with higher levels of anti-
White bias. Perhaps most important, the change over time in
perceived anti-White and anti-Black bias from the 1950s to
the 2000s was negatively correlated for White respondents,
r(209) -.28,p < .001, suggesting that Whites also linked the
decrease in anti-Black bias over the last half century to an
increase in anti-White bias over the same time period. Ratings
for Black respondents were less tightly linked within each
decade ( -.25 :=::; r :=::; .04, with only three decades, the 1970s,
1980s, and 1990s, significantatp < .05; average r= -.13), and
changes in perceived racism over the decades were not corre-
lated for Black respondents, r(208) = -.05, p = .48. Both
within each decade and across time, White respondents were
more likely to see decreases in bias against Blacks as related
to increases in bias against Whites-consistent with a zero-
sum view of racism among Whites-whereas Blacks were less
likely to see the two as linked. Of course, our results are corre-
lational in nature, and as such, they do not necessarily reveal
that Whites believe that decreases in anti-Black bias cause
increases in anti-White bias; future research should explore the
causal nature of the robust link we observe.
Conclusion
In 2003, U.S. Supreme Court Justice Sandra Day O'Connor
wrote that, "we expect that 25 years from now, the use of racial
preferences will no longer be necessary" ( Grutter v. Bollinger,
2003). In contrast to popular notions of a postracial America
after Barack Obama's 2008 election, our data suggest that
many Whites believe that the moment O'Connor foresaw has
already passed, and that the pendulum has now swung beyond
equality in the direction of anti-White discrimination. Although
a number of previous surveys have explored differences in
White and Black Americans' perceptions of progress toward
racial equality (e.g., Hochschild, 1995; Kluegel & Smith,
1986; Sigelman & Welch, 1991), as well as Whites' desire to
explain away disparities in racial outcomes (e.g., Esses &
Hodson, 2006; Federico & Sidanius, 2002; Lowery, Knowles,
& Unzueta, 2007), our data are the first to demonstrate that not
217
only do Whites think more progress has been made toward
equality than do Blacks, but Whites also now believe that this
progress is linked to a new inequality-at their expense.
Although our data do not speak directly to the mechanisms
underlying Whites' view of racism as a zero-sum game, it is
likely that this belief has both practical and symbolic compo-
nents. On the practical side, affirmative action policies
designed to increase minority representation may focus
Whites' attention on the impact of quota-like procedures on
their own access to education and employment, in effect threa-
tening their resources (Haley & Sidanius, 2006). On the sym-
bolic side, Whites may fear that minorities' imposition of
their cultural values represent an attack on White cultural val-
ues and norms, as evidenced by Whites' resentment of norms of
political correctness (Norton, Sommers, Apfelbaum, Pura, &
Ariely, 2006) and the belief of many Whites in a "War on
Christmas" (Gibson, 2005). In sum, our findings situate spe-
cific claims of persecution by White Americans in a broader
belief in a new, generalized anti-White bias. That Whites now
believe that anti-White bias is more prevalent than anti-Black
bias has clear implications for public policy debates and beha-
vioral science research in the years to come.
Acknowledgments
We thank Frank Flynn and Devin Pope for their helpful comments.
Declaration of Conflicting Interests
The authors declared that they had no conflicts of interest with respect
to their authorship or the publication of this article.
Editor's Note
In accordance with our policy, as a condition of publication, the
authors have agreed to make their full data set available to others.
Notes
1. Respondents were recruited by an online survey research company
and paid $5 for participation. They were randomly selected from a
panel of2.5 mi11ion respondents matched to the 2000 United States
Census on gender, age, and education level. Mirroring national
trends for White and Black Americans, the two samples differed
on age, t(414) = 1.71, p = .09, and education, x! (5) = 11.43,
p < .05, such that the White sample was slightly older and more
educated (see Table 1). The two groups did not differ on gender
composition. Respondents were asked to "indicate how much you
think Blacks [Whites] were/are the victims of discrimination in the
United States in each ofthe following decades." They began with the
1950s and proceeded through the 2000s, rating racism against Blacks
in each decade and then racism against Whites in each decade.
2. Although our analyses do not reveal differences based on age and
level of education, the potential moderating role of other demo-
graphic factors such as respondents' state of residence and income,
as well as psychological factors such as respondents' political
ideologies and race-related attitudes (e.g., Henry & Sears, 2002;
Plant & Devine, 1998; Pratto, Sidanius, StaiJworth, & Malle,
1994), merit further attention.
Downloaded from pps.sagepub.com at Harvard Ubrarles on May 18, 2011
218
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Washington

Wilam Morris Endaava" EnW!ainmerrt. LLC et al.
CERTIFICATE OF SERVICE
Docket Number: 11-3576-CV
I, ___ M_a_rc_u_s_l_s_a_ia_h_W_a_s_h_in_,g,_to_n __ , hereby certify under penalty of perjury that on
(name)
May 3, 2012 , I served a copy of Expedited Motion for Review to Recall Mandate,
Vacate Improvident Articulate Reasoning in the Form of a Judicial Opinion, Pending the Fi6ng of a Petition for Certiorari.
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Name Address City State
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May 3, 2012
Today's Date \.. Signature
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page, the type of service used for each respective party.
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